TERMS AND CONDITIONS OF SALES AND SERVICE
1. Agreement. Unless otherwise agreed in a written document signed by a vice president of Empire Southwest, LLC ("Empire"), these Terms and Conditions of Sales and Service ("Terms") govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology and parts) ("Goods") and services ("Services") from Empire by any individual or entity that purchases such Goods or Services from Empire ("Client"). Empire hereby rejects the terms of any purchase order or other document submitted by Client, unless the document is signed by a vice president of Empire. The placing of an order with Empire or the receipt or acceptance of Goods or Services by Client constitute Client's acceptance of these Terms exactly as written.
2. Order and Delivery of Goods or Services. All orders for Goods and Services are subject to credit approval and final acceptance by Empire in its sole discretion. Client shall have no right to cancel purchase orders for Goods once a purchase order is issued to Empire; provided, however, some parts may be returnable to Empire in accordance with Empire's then current parts return policy. Client acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Empire will use commercially reasonable efforts to meet estimated delivery dates and shall keep Client advised of the status of its delivery, but Empire shall have no liability for any loss associated with delay in the delivery of Goods. In addition, Empire shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, strikes, labor shortages or disturbances, shortages of materials, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.
3. Pricing. Unless otherwise set forth on a written quote issued by Empire ("Quote"), the price for Goods shall be Empire's list price for such Goods on the date such Goods are delivered to Client. Unless otherwise set forth on a Quote, the labor rates for Services shall be Empire's standard labor rates for the applicable type of Service (field rates, shop rates, mine rates or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Client will promptly pay to Empire any taxes that Empire is required to collect with respect to the purchase of Goods and Services, including, but not limited to, value added, personal property, sales, use and similar taxes ("Taxes"). For any Taxes from which Client claims exemption, Client shall provide Empire with properly completed exemption certificates and any documentation needed to validate the exemption. If Client fails to provide an appropriate exemption certificate and supporting documentation, as determined by Empire, Client will remain liable for all such Taxes and will indemnify Empire for any liability related to the same. Pricing and risk of loss for purchased Goods is FOB Empire's site, unless purchased Goods are shipped to Client directly from the manufacturer, in which case pricing and risk of loss is FOB factory. Any claims for shortages, damages, or delays must be made by Client direct to the carrier.
4. Payment Terms. For Clients with an open credit account with Empire, machine sales payments are due Net 10, and all other payments are due Net 30. For Clients who do not have an open credit account with Empire, payment is due upon delivery of Goods or completion of Services. Empire may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. If Client fails to pay for Goods and Services as and when due, Client shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full, and Client shall pay Empire all reasonable attorneys' fees and collection costs incurred by Empire. In addition to any other right of set-off or recoupment Empire has under applicable law, Client agrees that, with respect to any amounts due from Client or Client's affiliates to Empire or Empire's affiliates, Empire and its affiliates may set-off such amounts against any amounts owing to Client or Client's affiliates. If Client requests customization of equipment, Client agrees to pay all parts and labor costs Empire incurs in customizing the equipment, regardless of whether or not Client completes the purchase of the customized equipment. Client must pick up its equipment from Empire's facility within 2 business days after notification from Empire of completion of Services. If Client's equipment is not picked up within two business days after such notification, Client will be liable for storage charges of $300.00 per day from the date of completion of Services until Client's equipment is picked up. Pursuant to A.R.S. § 33-1023, Empire may sell Client's equipment if such equipment remains in Empire's possession after 30 days and any amounts owed remain unpaid.
(a) New Goods. If Client is purchasing new Goods from Empire, Client acknowledges that (i) Empire is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer's warranty, Empire will pass through to Client the manufacturer's warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer's warranty will be subject to all conditions and exclusions set forth therein. In certain circumstances, Client may have the option of purchasing an equipment protection plan or extended service coverage (each, an "Extended Protection Product"); if such an Extended Protection Product is available and is purchased by Client at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.
(b) Used Goods. If Client is purchasing used Goods from Empire, Client acknowledges that the only warranties with respect to such used Goods are those warranties, if any, expressly set forth in the bill of sale signed by Empire.
(c) Services. If Client is purchasing Services from Empire, Empire warrants that its Services will be completed in a good and workmanlike manner, with such service warranty extending for a period of six months from completion of the original Services. If Empire performs a repair pursuant to its service warranty, the warranty period remains six months from completion of the original Services; the six month service warranty period does not start over with the repair. If the replacement parts used by Empire in connection with the provision of Services include a manufacturer's warranty, Empire will pass such warranty through to Client to the extent permitted by the terms of the manufacturer's warranty. Empire's service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Client, subsequent repairs performed by Client or vendors other than Empire, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer's standards or failure to maintain fluid levels recommended by the manufacturer) or damage due to theft, vandalism or casualty.
(d) WARRANTY DISCLAIMER. Empire makes no warranty, express or implied, with respect to any Goods or Services other than the foregoing warranties (provided, however, none of the foregoing warranties shall apply to fire suppression systems or the installation, removal, maintenance or servicing of the same), including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose or any implied warranties that may arise from the course of dealing between the parties. To the maximum extent permitted by law, all such warranties are hereby disclaimed by Empire and waived by Client.
6. Indemnification. Each party agrees to defend, indemnify and hold harmless the other party for, from and against any third party claims related to the Goods or Services to the extent such third party claims (including, but not limited to claims related to the death or injury of any person(s) or damage to or destruction of any real or personal property) are caused by the indemnifying party's negligent acts or omissions, subject to the limitations set forth in Section 7 below. The foregoing indemnity shall not apply to claims asserted by employees of either party. To the fullest extent permitted by law, Client agrees to defend, indemnify and hold harmless Empire, its affiliates and subsidiaries, and all of their respective owners, directors, officers, managers, employees, agents or representatives for, from and against any and all liabilities, claims, actions, suits, damages, losses and expenses (including, but not limited to, reasonable attorneys' fees, expert witness fees, costs and expenses) that are caused by, arising from or related in any way to fire suppression systems (including, but not limited to losses related to the death or injury of any person(s) or damage to or destruction of any real or personal property).
7. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts or lost production, regardless of whether or not such party was advised of the possibility of such damages. In addition, Empire's maximum aggregate liability (whether in contract, warranty, indemnity, tort, strict liability or any other theory of law or equity) for damages or loss, howsoever arising or caused, shall in no event exceed the amount Client paid to Empire for the Goods or Services to which the liability relates. The parties recognize that the pricing associated with Goods and Services reflects this allocation of risk and is the basis of the bargain between the parties. The foregoing limitations shall be valid and enforceable, notwithstanding any alleged failure of essential purpose of the limited remedies set forth herein. Any and all claims arising out of or relating to the Goods and/or Services will be barred unless a legal proceeding is commenced within one (1) year from completion of the Services or delivery of the Goods to Client.
8. Privacy Statement. Client consents to the collection, use, retention and disclosure of information by Empire and its parent, subsidiary and affiliated entities (collectively, "Empire Entities") in accordance with Empire's Privacy Statement, which is posted at http://www.empire-cat.com/privacy_policy.aspx (as such statement may be revised from time to time), and agrees that such information may be accessed by the Empire Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
9. Product Information. If Caterpillar equipment that is purchased, owned or rented by Client is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition and its operation ("Telematics Information") is being transmitted to Caterpillar, its affiliates, the Empire Entities and/or other Caterpillar dealers to better serve Client and to improve Caterpillar products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with the Caterpillar Data Governance Statement, which is posted at http://www.cat.com/en_US/legal-notices/data-governance.html (as such statement may be revised from time to time) ("Statement"). Client consents to the collection, use, retention and disclosure of the Telematics Information in accordance with the Statement and agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates, its subsidiaries, the Empire Entities and/or other dealers with a legitimate business reason to access it, as well as third parties who may process the Telematics Information on their behalf. As set forth in the Statement, Caterpillar may use Telematics Information in combination with information about Client. Client further acknowledges and agrees that Telematics Information may be made available to subsequent owners of equipment. If Client does not want Telematics Information transmitted as described above, Client can request documentation to opt out of the transmission of such information by sending an email to firstname.lastname@example.org. Notwithstanding anything herein to the contrary, unless Client and a vice president of Empire execute a separate, written equipment monitoring agreement that expressly sets forth monitoring services elected by Client and the charges for such monitoring services, the transmission of Telematics Information shall not impose upon the Empire Entities any obligation to monitor Client's equipment and/or to notify Client of any operational, performance or other issues associated with the same.
10. Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Arizona without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the State or Federal courts located in Maricopa County, Arizona.
11. General Provisions. Client may not assign Client's rights or obligations hereunder without Empire's prior written consent, and any such attempted assignment will be void. If any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect. A party's waiver of any breach will not constitute a waiver of any different or subsequent breach. No employment, agency, joint venture, or similar arrangement is created or intended between Client and Empire. Empire is an EEO/Affirmative Action Employer. Client warrants that the invoiced Goods or Services will be used for business or agricultural purposes and not for personal, family or household purposes. Any on-road heavy-duty diesel, alternative-diesel, or off-road diesel vehicle, operated in California, may be subject to the California Air Resources Board In-Use On-Road (Truck and Bus) or In-Use Off-Road Diesel Vehicle Regulations. It therefore could be subject to exhaust retrofit or accelerated turnover requirements to reduce emissions of air pollutants. For more information, please visit the California Air Resources Board websites at http://www.arb.ca.gov/dieseltruck for the Truck and Bus Regulation or http://www.arb.ca.gov/msprog/ordiesel/ordiesel.htm for the Off-Road Regulation.
Notice is hereby given that, with respect to certain used equipment sales transactions, Empire has assigned its rights (but not its obligations) to CATD Exchange Services, LLC to sell the equipment, and, if applicable, to purchase trade-in property, as part of an Internal Revenue Code § 1031 exchange.