All sales of Packaging Machinery Australia (hereinafter called “PMA”) are subject to the following terms and conditions. Any order that contains terms and conditions in addition to or inconsistent with the following shall not be binding upon PMA unless acceptance thereof is made in writing by an officer of PMA, and failure of PMA to object to provisions contained in any purchase order or other communication from BUYER shall not be construed as a waiver of these conditions nor an acceptance of any such provision.
Specific quotations showing definite quantities must be made for each order and are subject to immediate acceptance.
No orders shall be binding on PMA until accepted in writing by PMA.
PMA reserves the right to correct clerical and stenographic errors at any time.
PMA represents that in the manufacture of its products and performance of its service it has complied with all applicable provisions, regulations and orders under the FAIR LABOR STANDARDS ACT OF 1938.
The BUYER is limited to a two-year period for bringing actions upon any section of this CONTRACT. This CONTRACT shall otherwise be governed by and construed according to the laws of the State of Wisconsin.
No person, agent, firm or dealer is authorized to modify or amend these PMA Standard Conditions of Sale unless specifically set forth and acknowledged in writing by an officer of PMA.
PMA shall not be bound by any penalty clause for failure to meet shipment which may be included in any purchase order, contract, or quotation, unless specifically set forth and acknowledged in writing by an officer of PMA.
PMA warrants the equipment and components of its manufacture to be free from defects in workmanship and material under normal use and service for a period of one (1) year, except for normal wear items as may be defined in proposal. The BUYER agrees to pay travel and living expenses for warranty work done at the customer’s site.
The above warranty period commences at date of shipment. In the event the BUYER delays shipment, the warranty-period commences on the date PMA is prepared to make shipment.
This warranty does not apply to any equipment which after delivery has been subject to abuse, accident, alterations by anyone other than persons authorized by PMA, improper storage, misuse in its application, improper maintenance or failure to observe the operating instructions.
The obligation of PMA hereunder shall be limited solely to repair and replacement of products that fail within the foregoing limitations, and shall be conditioned upon the receipt by PMA of written notice of any alleged defects or deficiency promptly after discovery within the warranty period. No products shall be returned to PMA without its prior consent. Products which PMA consents to have returned shall be shipped F.O.B. PMA’s factory. Final determination as to whether a product is defective rests with PMA. PMA will not assume responsibility or accept invoices for unauthorized repairs to its components, even if defective.
PMA MAKES NO WARRANTY AS TO FITNESS OF ITS PRODUCTS FOR SPECIFIC APPLICATIONS BY THE BUYER, NOR AS TO PERIOD OF SERVICE UNLESS PMA SPECIFICALLY AGREES OTHERWISE, IN WRITING, AFTER THE PROPOSED USAGE HAS BEEN MADE KNOWN TO IT. PMA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING IN ANY MANNER FROM THE FURNISHING OF THE PRODUCTS OR FOR ANY EXPENSE INCURRED BY BUYER DUE TO USE OF SUCH PRODUCT.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANT ABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE.
THIS WARRANTY DOES NOT APPLY TO EXPERIMENTAL OR DEVELOPMENTAL PRODUCTS.
Replacement parts for equipment that are still under the original warranty are warranted only for the period that remains under the original warranty.
Replacement parts for equipment no longer under original warranty are warranted for a period of 90 days from date of shipment. All parts are shipped F.O.B. Factory unless specified in writing. Prices are those in effect at time of shipment. All prices in PMA’s price book or other printed matter are subject to a minimum 25% restocking charge.
The above warranty is expressly conditional upon the following: BUYER agrees to comply with the requirements of the OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 and the standards and regulations prescribed thereunder and agrees that the location, operation, installation, maintenance and use of all goods furnished by the SELLER and all work performed thereunder by the BUYER will comply with such requirements, standards and regulations. In no event shall SELLER be responsible for any failure of the goods to so comply where such failure is caused in whole or in part by (a) use contrary to the standard industry practices and procedures for operation and use of the goods, or use contrary to SELLER’S instructions or recommendations for operation and use of the goods, or (b) use in conjunction with other goods of the BUYER.
If any product furnished by PMA, in suit, held to constitute infringement of any patent granted by the United States, PMA shall, at its expense and at its option, either: Obtain the right for BUYER to continue using its product; or replace it with a non-infringing product and refund the purchase price. Any parts which PMA does not manufacture are not hereby covered.
Shipping dates set forth by PMA are approximate, based on conditions existing at the time the estimate is made and are contingent upon the BUYER promptly supplying all necessary information, approvals and down payments to PMA. Such estimate is not a guarantee as to shipment and PMA accepts no responsibility for any delays which may occur.
Unless otherwise agreed to in writing by PMA, delivery of the products hereunder shall be made F.O.B. point of shipment with transportation expense paid by the BUYER. Risk of loss or damage to products shall pass to the BUYER upon delivery to the carrier, regardless of the terms of sale or any reservation of security title herein. BUYER shall procure and maintain for the benefit of PMA and BUYER as their interests may appear, adequate insurance on the products against damage by fire or other risks or casualties. BUYER shall be responsible for filling any claims against such insurers or carriers.
The terms of payments are specified on the PMA quotation and subject to the following conditions: If shipments are delayed by the BUYER, payments shall become due on the date when PMA is prepared to make shipment. If such payment is delayed, an escalation factor of two per cent (2%) of the total outstanding balance shall apply for each month shipment is delayed. If the work to be performed hereunder is delayed by the BUYER, payments shall be made based on the purchase price and percentage of completion, and BUYER shall be liable for any price increase in the interim. Products held for the BUYER shall be at his risk and expense.
This CONTRACT expressly prohibits the BUYER from ceasing or reducing payments based upon a claim of breach of warranty. Lack of start-up is not, under this CONTRACT, cause for cessation or delay of payments unless otherwise expressly agreed to in writing.
All orders are subject to credit approval and if in PMA’s judgement, the BUYER’S financial condition at any time does not justify the terms specified, PMA may require full or partial payment as a condition to commencing or continuing manufacture, or in advance of shipment, or, if shipment has been made, recover the product from the carrier. BUYER’S failure to furnish any such payment within ten (10) days of demand by PMA shall constitute a repudiation of the CONTRACT and in such event PMA shall be entitled to receive cancellation charges in accordance with Section 12 hereof.
PMA’s prices do not include taxes. BUYER agrees to pay any and all taxes and assessments, or both, that may be levied against the products supplied by PMA and to protect PMA from any and all actions arising from failure to pay taxes or assessments so levied or assessed. BUYER shall provide PMA with tax-exemption certificates when required to protect PMA.
Security title and right of possession to the products sold hereunder shall remain with PMA until the full price (including deferred payments and any notes or renewals or extensions) have been paid cash and BUYER agrees to do all acts necessary to perfect and maintain such security right and title in PMA.
If Buyer cancels all or part of an Order without cause, BUYER will reimburse Seller for its direct expenses incurred to fulfill that Order through the cancellation date.
(a) No order which has been accepted by PMA may be cancelled by the BUYER except with the agreement in writing by PMA within five (5) days of verbal communication and on terms that the BUYER will indemnify PMA in full against all loss (including loss of profit), costs (including the cost of labor and materials used), damages, charges and expenses incurred by PMA as a result of cancellation.
(b) BUYER will reimburse PMA for all direct costs incurred as of the date of cancellation with respect to the product, including but not limited to engineering, design and development costs, material costs, freight costs, manufacturing labor and overhead costs, inventory costs, plus all other costs related to the cancelled order.
(c) Any products which are within thirty (30) calendar days of completion are to be completed by PMA and paid for by the BUYER in full under these Standard Conditions of Sale.
(d) Such penalty shall be immediately due and payable upon order cancellation.
(e) Any and all prepayments made by BUYER to PMA will be applied toward such reimbursements of costs.
(f) Within five (5) days of the date PMA notifies BUYER of the cancellation charges as set forth above, BUYER shall provide written instructions to PMA for the disposition of the cancelled materials. Failure to provide such instructions shall be prima facie evidence that BUYER relinquishes and assigns all right, title, and interest in such cancelled materials to PMA without credit against such cancellation charges, or other obligation on the part of PMA to account for the proceeds of disposition of such materials.
Prices specified in the quotation are for the period stated and, thereafter subject to change without notice, unless requoted.
PMA will comply with all provisions required to be inserted in BUYER’S purchase orders in accordance with the terms of any applicable FEDERAL statute.
PMA’S LIABILITY ON ANY CLAIM OF ANY KIND, INCLUDING NEGLIGENCE AND BREACH OF WARRANTY FOR ANY LOSS OR DAMAGE RESULTING FROM, ARISING OUT OF, OR CONNECTED WITH THIS CONTRACT, OR FROM THE PERFORMANCE OF BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR OR USE OF ANY PRODUCT COVERED BY OR FURNISHED UNDER THIS CONTRACT SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCT OR PART THEREOF WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL PMA BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
PMA will not be responsible for any damage resulting from improper storage or handling prior to placing the product in service. PMA will not assume any expense or liability for repairs made outside PMA’s plant without PMA’s prior written consent.
Quoted prices do not include charges for boxing, packing or freight unless specifically noted. If special packing is required, BUYER should refer to the factory for price additions.
PMA assumes no obligation to incorporate product changes in units manufactured prior to the date such changes are generally incorporated in its products.