Atlas 270MH 3000 Hour Service Kit (Tier 4 I Engine)

1. Terms and Conditions. In these terms and conditions the following words shall have the following meanings: 'Buyer' means the corporate entity, firm or person who accepts a quotation of the Seller for the sale of Products or whose order for Products is accepted by the Seller.  'Products' means the equipment ("Equipment") or parts ("Parts") supplied by the Seller to the Buyer in accordance with these Conditions; 'Conditions' means the terms and conditions of sale set out in this document.  These Conditions cancel and supersede any and all terms of sale pertaining to Parts and Equipment (and any supplements thereto) previously issued by Seller to Buyer and are subject to change without advance notice.  The prices, charges, discounts, terms of sale and other provisions referred to or contained herein shall apply to Products (Parts and Equipment) sold and shipped to Buyer and shall remain in effect unless and until superseded in writing by Seller.  Acceptance of an order for Equipment and/or Parts by Seller shall be deemed to constitute a binding agreement between the parties pursuant to the Conditions contained herein and Buyer agrees that the order may not thereafter be cancelled, countermanded or otherwise changed without the prior written consent of Seller.  These Conditions supersede any prior agreements, representations, or other communications between the parties relating to the subject matter set forth herein.  No other terms and conditions shall apply [unless expressly agreed in writing by authorized representatives of both Seller and Buyer] including the terms of any purchase order or any other terms submitted to Seller by Buyer, whether or not such terms are inconsistent or conflict with or are in addition to the terms and conditions set forth herein.  Seller's acceptance of Buyer's purchase order is conditional upon Buyer's acceptance of all the terms and conditions contained in these Conditions. Any communication construed as an offer by Seller and acceptance thereof is expressly limited to the terms and conditions set forth herein.

2. Terms of Payments. Payment for Parts and Equipment purchased by Buyer shall be made in accordance with any of the following terms, provided they have been previously arranged with and expressly approved by Seller in writing: (1) cash in advance; (2) confirmed, irrevocable letter of credit established in such amount and form and at such time and at such bank as shall be approved by Seller in respect of each order; or (3) other payment arrangements expressly approved by Seller in writing prior to or at the time the order is placed. If any Buyer credit account purchase is not paid in accordance with Seller's credit payment terms, in addition to any other remedies allowed by law, Seller may refuse to make further shipments without advance payment by Buyer.  Nothing contained herein shall be construed as requiring Seller to sell any Parts or Equipment to Buyer on credit terms at any time, or prohibiting Seller from making any and all credit decisions which it, in its sole discretion, deems appropriate for Seller.  Unless otherwise stated all prices quoted are valid for 30 days only (the “Validity Period”) or until earlier acceptance by Buyer. If the Validity Period expires without acceptance by the Buyer the price may be altered by the Seller without giving notice to the Buyer. The Seller reserves the right by giving notice to the Buyer at any time to increase the purchase price of the Equipment to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller including (but without limitation) any increase in the cost of raw materials, labour or services or duties or any currency fluctuations affecting the cost of imported materials, any alteration of taxes or other levies, any change in delivery dates, quantities or specifications for the Equipment requested by the Buyer, any increase in cost of carriage, and any failure of Buyer to provide adequate information or instructions. Unless otherwise specified, the Buyer shall pay the purchase price upon notification that the Equipment is available for delivery.  Such payment shall be made without any deduction and notwithstanding that the Buyer may not have collected the Equipment and or that the title to the equipment has not passed to Buyer.

3. Taxes and Duties. Unless expressly otherwise stated, prices quoted do not include taxes or duties of any kind or nature. Buyer agrees that it will be responsible for filing all tax returns and paying applicable tax, duty, export preparation charge and export documentation charge resulting from the purchase of the Products.  In addition, in the event any other similar tax is determined to apply to Buyer's purchase of the Products from Seller, Buyer agrees to indemnify and hold Seller harmless from and against any and all such other similar taxes, duties and fees. The amount of any present or future taxes applicable to the sale, transfer, lease or use of the Equipment shall be paid by Buyer; or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate satisfactory to the applicable taxing authority proving that no such tax is due and payable upon such sale, transfer, lease or use. 

4. Title, Property, Risk and Delivery. Unless otherwise stated in writing, for all orders, all prices are FCA, Seller's premises, Incoterms 2000 ©.  Notwithstanding risk in the Products passing to the Buyer on delivery, legal title in the Products shall not pass to the Buyer until the Seller has received in full all sums due to it in respect of the Products and all other sums which are or which become due to the Seller from the Buyer on any account.  The Buyer is authorized by the Seller to use the Products in the ordinary course of its business or to sell the Products to a third party pursuant to a bona fide and arms length transaction at full market value.  Until the Seller has received all sums due to the Seller with respect to the Products: (a) the Buyer will hold the Products in a fiduciary capacity on behalf of the Seller; (b) the Products shall, subject to the provisions of this section be: (i) insured with a reputable insurance company for their full replacement value against all risks to the reasonable satisfaction of the Seller and on request the Buyer shall produce the policy of insurance to the Seller, (ii) kept complete and in good repair and condition and free from damage and/or tampering; (c) the Buyer will not obliterate or remove any identifying marks on the Products and shall, if requested in writing by the Seller cause a note to be made in its book keeping records and also where possible a notice to be affixed to the Products indicating that the Products remain the property of the Seller; and (d) the Seller, its representatives, agents or auditors shall be entitled at all reasonable times to examine the Buyer's book keeping records and the Products to satisfy themselves that the note referred to above has been made and that the notice referred to above is affixed to the Products and has not been obscured. 

The Buyer's right to possession and power of sale contained in the foregoing sentences shall automatically cease if the Buyer (being a corporation) has a petition presented for its winding up or administration or passes a resolution for voluntary winding-up otherwise than for the purposes of a bona fide amalgamation or reconstruction or has a receiver, manager administrator or administrative receiver appointed over all or any part of its assets or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986 or (being an individual) becomes bankrupt or enters into any arrangements with its creditors or takes or suffers any similar action in consequence or carries out or undergoes any analogous act or proceedings under foreign law or ceases or threatens to cease carrying on business.  Until such time as the Seller has received payment of all sums due to the Seller with respect to the Products, the Buyer shall place any of the Products still in existence in its possession or under its control at the disposal of the Seller and if required by the Seller immediately deliver the Products to the Seller; provided that Products purchased by the Purchaser for resale may be sold subject to the rights of the Seller to attach the proceeds of such sale. 

The Seller (including its representatives, agents and employees) is irrevocably authorised by the Buyer at any time to enter upon any premises of the Buyer or any third party where the Products are or may be stored in order to inspect them or where the Buyer's right to possession has terminated for the purpose of repossessing, removing and if necessary dismantling such Products for the purposes of removal.  The Seller shall at any time be entitled to appropriate any payment made by the Buyer in settlement of any invoices in respect of such Products as the Seller may in its absolute discretion think appropriate notwithstanding any purported appropriation to the contrary by the Buyer.  Where the Seller is unable to determine if any Products are subject to this paragraph, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.  The Seller has the right to maintain an action against the Buyer for the price.  Nothing in these Terms and Conditions of Sale or any other contract will constitute the Buyer the agent of the Seller in respect of the resale of the Products so as to confer upon a third party any rights against the Seller.  If the Buyer pledges or in any way charges by way of security for any indebtedness any of the Products for which the Seller has not received cleared funds of all sums due to the Seller with respect to the Products, all money owed by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) immediately become due and payable.  Following any sale of the Products to a third party pursuant to a bona fide and arms length transaction in accordance with this paragraph 4, the Buyer shall hold the proceeds of sale on behalf of the Seller and the Buyer shall account accordingly.  The entire proceeds of any sale or otherwise (whether tangible or intangible and including without limitation any insurance proceeds) are to be: (a) held by the Buyer in a fiduciary capacity for the Seller and are kept separate from and not mixed with other money or property of the Buyer or any third party; (b) in the case of cash, not paid into an overdrawn bank account; (c) at all times identifiable as the Seller's money or property; and (d) in the case of tangible proceeds properly stored, protected and insured.  If any provision of this paragraph 4 (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.  If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Any claims for loss, damage or delay in transit must be entered and prosecuted by the Buyer directly with the carrier, who is hereby deemed to be the agent of the Buyer.  Seller shall not be liable for any delay in performance of any of its obligations under these Conditions including without limitation delivery of the Equipment, or for any damages suffered by Buyer by reason of delay, when the delay is caused, directly or indirectly, by any cause beyond the reasonable control of the Seller including, without limitation, those circumstances listed in paragraph 18 below.  In the event delay is caused by Buyer's failure to furnish necessary information with respect to data and details for Buyer's specifications, Seller may extend the date of despatch for a reasonable time, but in no event longer than five (5) days.  In the event delay in despatch is caused by Buyer or at Buyer's request, and the Products are not [shipped] within five (5) days from the first date they are ready to be [shipped], Seller may, in its sole discretion, sell such Products to another buyer without any liability or responsibility to Buyer whatsoever.  All payment shall be made in accordance with the terms of the applicable invoice.  In addition, storage charges due to delay in furnishing delivery instructions, arranging and establishing a method of payment satisfactory to Seller, or submitting valid import permits or licenses, or any other delay caused by Buyer or at Buyer’s request, will be for the account of Buyer.  Any dates quoted for delivery are approximate only and the Seller shall not be liable for any delay in delivery.

WITHOUT  PREJUDICE TO THE GENERALITY OF THESE CONDITIONS, THE SELLER SHALL NOT BE LIABLE FOR ANY LOSS OF USE OR FOR ANY OTHER INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES, WHICH SHALL INCLUDE WITHOUT LIMITATION FOR PURPOSES HEREOF, LOSS OF USE, LOST PROFITS OR REVENUES, LABOUR OR EMPLOYMENT COSTS, LOSS OF USE OF OTHER EQUIPMENT, DOWNTIME OR HIRE CHARGES, improper performance or work, LOSS OF SERVICE OF PERSONNEL, LOSS OF CONTRACT OR OPPORTUNITY AND PENALTIES OF ANY KIND DUE TO DELAY IN SCHEDULED DELIVERY, WHETHER OR NOT CAUSED BY THE SELLER.  Claims for shortages in shipments shall be deemed waived and released by Buyer unless made in writing within five (5) days after Buyer's receipt of the Products.  [Seller's responsibility for delivery [shipment] shall cease upon delivery of the Products to the [place of shipment][carrier or other person nominated by the Buyer], and all claims occurring thereafter shall be made to or against the carrier by Buyer.]

5. Cancellation. Prior to delivery to place of shipment, an Equipment or Parts order may be cancelled only with Seller's prior written consent and upon terms indemnifying Seller from all resulting losses and damages. Seller shall have the right to cancel and refuse to complete an Equipment or Parts order if any term and/or condition governing this agreement are not complied with by Buyer.  In the event of cancellation by Seller, or in the event Seller consents to a request by Buyer to stop work or to cancel the whole or any part of any order, Buyer shall make reimbursement to Seller, as follows: (i) any and all work that can be completed within (30) days from date of notification to stop work on account of cancellation shall be completed, shipped and paid in full; and (ii) for work in progress and any materials and supplies procured or for which definite commitments have been made by Seller in connection with the order, Buyer shall pay such sums as may be required to fully compensate Seller for actual costs incurred.  Buyer may not cancel any order after Seller's delivery to place of shipment.  Orders for "Special" Equipment may not be cancelled after acceptance, except by Seller.  Items of "Special" Equipment are those that differ from standard Seller specifications, have a limited market, or incorporate specifications that have been determined for a specific application.  Determination of whether an item of Equipment is “Special” shall be made by Seller in its sole discretion.

6. Inspection and Acceptance of Equipment. Buyer agrees that it shall inspect the Equipment immediately after receipt and promptly (in no event later than fifteen (15) days after receipt) notify Seller in writing of any non-conformity or defect. Buyer further agrees that failure to give such prompt notice or the commercial use or resale of the Equipment shall constitute acceptance.  Acceptance shall be final and Buyer waives the right to revoke acceptance for any reason, whether or not known by Buyer at the time of such acceptance.  The giving of any such notice by Buyer shall automatically cause the provisions of Seller’s warranty to apply and govern the rights, obligations and liabilities of the parties with respect to such nonconformity or defect, provided under no circumstances shall rejection give rise to any liability of Seller for indirect damages or losses of any kind, including, without limitation, loss of use, lost revenues or lost profits. 

7. Warranty. Seller warrants its new Equipment, to be free of defects in material or workmanship for a period of 12 months from the date of sale to the end-user provided that Buyer sends Seller written notice of the defect within thirty (30) days of its discovery and establishes to the Seller's satisfaction that: (i) the Equipment has been maintained and operated within the limits of rated and normal usage, and that there have been no alterations to it; and (ii) the defect did not result in any manner from the intentional or negligent action or inaction by Buyer or the end-user or any of their respective agents or employees or any person using it.  If requested by Seller, Buyer or the end-user must return the defective Equipment to Seller's manufacturing facility for inspection, and if Buyer or the end-user cannot establish that conditions (i) and (ii) above have been met, then this warranty shall not cover the alleged defect.  Failure to give written notice of defect within such period shall be a waiver of this warranty and any assistance rendered thereafter shall not extend or revive it.  Accessories, assemblies and components included in Equipment of Seller, which are manufactured by third-parties (other than affiliates of Seller) are subject to the warranty of their respective manufacturers.  No warranty shall cover any item on which serial numbers have been altered, defaced or removed.  Maintenance, consumable items and wear parts are not covered by this warranty and are the sole maintenance responsibility of Buyer or the end-user.  This warranty is limited to the first end-user and is not assignable or otherwise transferable without written agreement of the Seller.  THIS WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED AND ALL OTHER STATUTORY, CONTRACTUAL, TORTIOUS AND COMMON LAW OBLIGATIONS OR LIABILITY ON SELLER'S PART ARE HEREBY EXPRESSLY EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.  THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE LIMITED WARRANTY CONTAINED HEREIN.  Seller neither assumes nor authorizes any other person to assume for Seller any other liability in connection with the sale of Seller's Equipment or Parts.  This warranty shall not apply to any of Seller's Equipment or Parts or any part thereof which has been subject to misuse, alteration, abuse, negligence, accident, acts of God or sabotage.  No action by either party shall operate to extend or revive this limited warranty without the prior written consent of Seller. 

8. Remedies for Breach. IN THE EVENT OF ANY BREACH OF THE WARRANTY BY SELLER, THE PARTIES AGREE THAT SELLER'S LIABILITY SHALL BE LIMITED EXCLUSIVELY TO THE REMEDIES (AT SELLER’S SOLE DISCRETION) OF REPAIR OR REPLACEMENT OF ANY DEFECTIVE PRODUCTS COVERED BY THE WARRANTY, OR REFUND OF THE PURCHASE PRICE IN RELATION TO THEM. In no event shall Seller, or any subsidiary or division thereof be liable for indirect OR consequential Damages or losses resulting from any breach of warranty, representation or condition, EXPRESS OR IMPLIED, oR ANY other terms of these Terms and Conditions of Sale, or any breach of aNY DUTY OR OBLIGATION IMPOSED BY STATUTE, CONTRACT, TORT OR common law or otherwise (whether or not caused by the negligence of the Seller, its employees, agents or otherwise), including, without limitation, loss of use, lost profits or revenues, labour OR EMPLOYMENT costs, loss of use of other equipment, DOWNTIME OR HIRE CHARGES, third party repairs, [emotional or mental distress], improper performance or work, loss of service of personnel, LOSS OF CONTRACT OR OPPORTUNITY AND penalties of any kind, OR failure of Equipment to comply with any applicable laws.  The Seller’s liability to the Buyer shall in any event not exceed the purchase price of the Products, provided that nothing in this paragraph 8 shall operate to exclude the Seller's liability for death or personal injury.

9. Specification Changes. In the event Seller incurs additional expense because of changes in specifications or drawings previously approved by Buyer, or in the event Seller is required to modify the ordered Products, perform any additional work or supply any additional Equipment or Parts, the additional expense shall be added to the purchase price. Seller shall have the right, in its sole discretion, to accept or reject any changes in specifications requested by Buyer.  In no event shall any changes in specifications be made or accepted thirty (30) days prior to launch date or thereafter.

10. Insurance. Until the purchase price of the Products is paid in full, the Buyer shall provide and maintain insurance equal to the total value of the Products delivered hereunder against customary casualties and risks, including, but not limited to fire and explosion, and shall also insure against liability for accidents and injuries to the public or to employees, in the names of Seller and Buyer as their interest may appear, and in an amount satisfactory to Seller. If the Buyer fails to provide such insurance, it then becomes the Buyer's responsibility to notify the Seller so that the Seller may provide same, and the cost thereof shall be added to the contract price.  All loss resulting from the failure to affect such insurance shall be assumed by the Buyer. 

11. Patents, Copyrights, Trademarks, Confidentiality. No license or other rights under any patents, copyrights or trademarks (except with respect to the Buyer's use of trademarks as may otherwise be agreed to by Seller and Buyer) owned or controlled by Seller or under which Seller is licensed are granted to Buyer or implied by the sale of Equipment or Parts hereunder. All plans, designs, drawings, blueprints, manuals, specifications and other documents relating to the business of Seller or Equipment and Parts ("Information") shall be and remain the exclusive property of Seller and shall be treated by Buyer as confidential information and not disclosed, given, loaned, exhibited, sold or transferred to any third party without Seller’s prior written approval or as necessary in connection with the resale or operation of Equipment and Parts; provided, however, that these restrictions shall not apply to Information that Buyer can demonstrate: (a) at the time of disclosure, is generally known to the public other than as a result of a breach of these Conditions by Buyer; or (b) is already in Buyer's possession at the time of disclosure by from a third party having a right to impart such Information.

12. Default and Seller's Remedies. In the event of default by Buyer, all unpaid sums and instalments owed to Seller, shall, at the Seller's sole option, become immediately due and payable without notice of any kind to Buyer. In addition to its right of acceleration, Seller may pursue any and all remedies allowed by law.  In addition to the foregoing, and not in limitation thereof, Seller shall have the right to set off any credits or amounts owed to Buyer against any amounts owed by Buyer to Seller.

13. Indemnification by Buyer. To the fullest extent permitted by applicable law, Buyer hereby agrees to indemnify, release, defend and hold harmless Seller, its directors, officers, employees, agents, representatives, successors, and assigns against any and all suits, actions or proceedings at law (including the costs, expenses and reasonable attorney's fees incurred in connection with the defence of any such matter) and from any and all claims demands, losses, judgments, damages, costs, expenses or liabilities, to any person whatsoever (including Buyer's and Seller's employees or any third party), or damage to any property (including Buyer's property) arising out of or in any way connected with the performance or the furnishing of services or Products under this agreement, regardless of whether any act, omission, negligence (including any act, omission or negligence, relating to the manufacture, design, repair, erection, service or installation of or warnings made or lack thereof with respect to any Products furnished hereunder) of Seller, its directors, officers, employees, agents, representatives, successors or assigns caused or contributed thereto. If Buyer fails to fulfil any of its obligations under this paragraph or these Conditions, Buyer agrees to pay Seller all costs, expenses and attorney's fees incurred by Seller to establish or enforce Seller's rights under this paragraph or this agreement.  The provisions of this paragraph are in addition to any other rights or obligations set forth in these Conditions.

14. Installation. Unless otherwise expressly agreed in writing, Buyer shall be solely responsible for the installation and erection of the Products purchased. Although Seller may in some cases provide service or other personnel, data and drawings to aid Buyer with installation or start-up, Seller assumes no responsibility for proper installation or support of the Products when installed and disclaims any express or implied warranties with respect to such installation and support.  Notwithstanding whether data and drawings are provided or  service or other personnel aid in the installation, Buyer shall, to the fullest extent permitted by applicable law, indemnify and hold Seller harmless and at Seller's request, defend Seller from all claims, demands or legal proceedings (including the costs, expenses and reasonable attorney's fees incurred in connection with the defence of any such matter) which may be made or brought against Seller in connection with damage or personal injury arising out of said installation or start-up.

15. Construction and Severability. These Conditions constitute the entire agreement between the parties regarding the subject matter hereto and shall be construed and enforced in accordance with the laws of Seller's place of incorporation. Seller shall not be bound by any agent's, employees or any other representation, promise or inducement not set forth herein.  The invalidity or unenforceability of any provisions of this agreement shall not affect any other provision and this agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted. 

16. Jurisdiction. The parties agree that the proper and exclusive forum and venue in all legal actions brought to enforce or construe any of the provisions of these Conditions shall be in the courts having jurisdiction in the Seller's place of incorporation.

17. No Assignment. No rights arising under this agreement may be assigned by the Buyer unless expressly agreed to in writing by the Seller.

18. Force Majeure. The Seller shall not be liable to the Buyer or be deemed to be in breach of these Conditions by reason of any delay in performing, or any failure to perform, ay of the Seller’s obligations in relation to the equipment if the delay or failure was due to any cause beyond the reasonable control of the Seller including (but without limitation) strike, lockout, riot, civil commotion, fire, accident, explosion, tempest, act of God, war, epidemic, stoppage of transport, terrorist activity, supply shortage or change sin government, governmental agency, laws, regulations or administrative practices.

19. Sales Promotion Documents. Seller’s catalogues, technical circulars, price lists, illustrations, drawings and other literature these documents are for the Buyer’s general guidance only and the particulars contained in them shall not constitute representations by the Seller and the Seller shall not be bound by them. No dimensions, details, statements or other information (including without limitation any information which relates to output variations, tons per hour of products, product shape or other calculations which in any case may vary according to the actual operating conditions and application of such equipment from time to time) as to capacity, output or power specified or contained in the drawings, catalogues, specifications, photographs or other documents or illustrations shall be treated as binding upon the Seller unless the Seller has expressly agreed otherwise in writing signed by an authorised signatory of the Seller. The Seller reserves the right to make such changes to the specification of the Equipment and/or the design of or material used in the Equipment as the Seller may determine.

20. Miscellaneous. Buyer represents that: (i) it is solvent and has the financial ability to pay for the Equipment and Parts purchased hereunder and (ii) it has all requisite right, power and authority to perform its obligations under this agreement.