Terms and Conditions
1. DEFINITIONS: As used herein, (a) "SELLER" shall mean Keith Machinery Corp. and Keith Machinery Metals Corp. and Anthony Manufacturing Corp. and Keith Machinery as agent for seller to be identified; (b) "BUYER" shall mean the bidder whose offer is accepted by SELLER; and (c) "ARTICLES" shall mean the items of property being offered for sale or auctioned by the SELLER.
2. DESCRIPTIONS: Any description published for ARTICLES offered for sale is not warranted by the SELLER to be accurate or complete. The SELLER shall not be responsible for any insufficiencies, inaccuracies or omissions.
3. DISCLAIMER OF WARRANTY: SELLER MAKES NO EXPRESS WARRANTIES WHATSOEVER, EXCEPT THAT SELLER OWNS THE ARTICLES OR IS EMPOWERED TO ACT AS SELLING AGENT ON BEHALF OF OWNER, NO WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE SHALL BE IMPLIED. The ARTICLES are offered and accepted "AS IS, WHERE IS" and "WITH ALL FAULTS". The SELLER shall not be responsible for damages of any kind (included, but not limited to, direct, incidental, or consequential damages) to anyone for any deficiencies or failure of any ARTICLES for any reason. BUYER assumes all risks of loss, after shipment by SELLER and/or upon commencement by BUYER of the dismantling or other work performed.
4. WARNING OF HAZARDS: BUYER acknowledges that SELLER warns that the ARTICLES may bear or contain hazardous chemicals or other hazardous materials which may become by chemical reaction or otherwise, directly or indirectly, hazardous to life, to health, or to property by reason of toxicity, flammability, explosiveness or for other different reasons, during use, handling, cleaning, reconditioning, disposal, etc. The BUYER has inquired and received satisfactory information from the SELLER regarding latent and patent hazards associated with the ARTICLES, BUYER EXPRESSLY ASSUMES ALL RISK OF AND RESPONSIBILITY FOR INJURY OR DAMAGES BASED ON OR ARISING OUT OF POSSESSION, HANDLING, DISMANTLING OR USE BY BUYER OR BY OTHERS OF ANY SUCH GOODS FOR ANY REASON WHATSOEVER. BUYER agrees to warn of all possible hazards to any person to whom BUYER resells, contributes, or delivers the ARTICLES, or to any person who may be exposed to their hazards. BUYER understands and agrees that no change in this broad warning shall bind SELLER. No additional specific warning shall be deemed to limit this broad warning, any such additional specific warning is inadequate, all of the TERMS AND CONDITIONS herein below set forth shall still apply, even if the inadequacy of the specific warning results from negligence on SELLER'S part; and no course of action on SELLER'S part shall be deemed to limit this broad warning.
5. INDEMNIFICATION: BUYER indemnifies, defends and holds SELLER harmless against any and all liability damage, included but not limited to, reasonable attorney's fees, arising out of any claim for personal injury, sickness, and death to any persons and for any property damage caused by the ARTICLES or by hazardous chemicals or other hazardous materials on or in the ARTICLES, whether or not due to the negligence of the SELLER during the commencement of the dismantling or other work by BUYER and thereafter following delivery to seller. The word "persons" as used herein, shall be construed to imply both the plural and the singular, as the case may demand, and shall include corporations, companies, associations, societies and municipal corporations as individuals.
6. REPRESENTATION: Photos and descriptions are provided for informational purposes only, and inspection of ARTICLES is encouraged by BUYER. Employees or SELLER'S representatives statements on quality or condition of ARTICLES is for informational purposes only. It is agreed by BUYER that photos, descriptions, and counts are evaluation tools only and BUYER is accepting and purchasing equipment "as is, where is" and "with all faults". Modification to "as, where is" agreements are only valid if stated on SELLER'S invoice in written format.
7. DAMAGES: Any damage done to the SELLER'S property during the removal of ARTICLES sold, including environmental damage, will be the responsibility of the BUYER to repair and remediate.
8. TITLES: Title to ARTICLES shall transfer from the SELLER to the BUYER upon proper payment. Payment shall be made and title passed to the BUYER prior to BUYER'S commencement of removal activities from SELLER'S premises. Thereafter, BUYER shall be responsible for the maintenance, insurance, operation and disposal of the ARTICLES in accordance with applicable law.
9. FORCE MAJEURE: The SELLER shall not be liable for its failure to perform hereunder due to circumstances beyond its reasonable control, including acts of God, fire, flood, riot, war, sabotage, accident, explosion, flood, strike, lockout, injunction, labor dispute, shortage, governmental law, ordinance, rules and regulations, breakage of machinery or apparatus national defense requirements, whether valid or invalid (including but not limited to priorities, requisitions, allocations and price adjustment restrictions), or inability to obtain any necessary equipment or transportation, and/or any other similar or different circumstances beyond control of the SELLER preventing the sale, pickup or dismantling of the ARTICLES .
10. PAYMENT: Prior to dismantling or removal of ARTICLES, BUYER shall make payment by bank wire transfer or cashier's check or other certified funds acceptable to SELLER unless alternate terms are mutually agreed upon in writing. Should the BUYER fail to comply with the payment terms, the SELLER may terminate the sale and BUYER will forfeit any deposits as penalty for failure to comply with payment terms or related transaction issues.
11. SALES TAXES: BUYER agrees to pay, at the time of sale, all applicable sales or use taxes or other taxes, charges or fees required to be paid or collected by SELLER relating to sale, or to provide SELLER with a valid exemption certificate. In the event that the BUYER either fails to pay the tax or other charges as agreed above, or fails to supply an exemption certificate, BUYER agrees to indemnify, defend and hold SELLER harmless from any liability and expense by reason of BUYER'S failure.
12. SHIPMENT: It shall be the responsibility of the BUYER to arrange shipment and to perform any preparation for shipment (boxing, skidding, payment, etc.) unless SELLER agrees in writing to other arrangements. Additionally, the BUYER agrees to exercise all necessary and prudent precautions to insure all loading and transportation will be performed that does not interfere with or jeopardize the facilities in or adjacent to the ARTICLES being removed. BUYER shall comply with all applicable State and Federal laws and regulations including OSHA requirements, and all safety rules set forth by the SELLER, while on the SELLER'S property.
13. FAILURE TO PERFORM: If ARTICLES are not removed by the BUYER within the stated time frame, (I) such ARTICLES shall be deemed abandoned by the BUYER, (II) BUYER shall forfeit all monies paid to SELLER for the purchase of such ARTICLES, including any rigging costs, and (III) BUYER shall forfeit the right to purchase such ARTICLES. In addition, the BUYER shall be responsible for all damages suffered by SELLER, including but not limited to, any dismantling, transportation, storage or other costs, including attorney's fees incurrd by SELLER as a consequence of BUYER'S failure to remove such ARTICLES. SELLER reserves the right to offer the ARTICLES for sale and to recover the difference, if any, in their place and the price paid by the new purchaser.
14. GOVERNING LAW: This agreement shall be governed by and shall be construed according to the laws of the State of New York as if executed and to be performed wholly within the State of New York. All actions, legal or other, instituted by BUYER under this Agreement must be filed in a federal or state court located in New York.
15. INSURANCE: If required by the site location of the ARTICLE, the BUYER shall provide and maintain, and shall require each contractor or subcontractor (regardless of tier) to provide and maintain minimum insurance coverage with carriers satisfactory to SELLER as specified below for any work to be performed on property where the ARTICLE is located. A copy of BUYER'S insurance certificate shall be submitted to SELLER prior to commencement of work All insurance certificates must evidence that the policy shall remain intact for the period during which the BUYER shall require access to SELLER'S facilities.
(1) Worker's Compensation - Statutory
(2) Employer's Liability - Statutory
(3) Commercial General Liability, Including Public Liability, Bodily Injury and Property Damage - $5,000,000 combined single limit per occurrence and annual aggregate
(4) Automobile Liability (covering owned and non-owned vehicles), Bodily Injury and Property Damage - $1,500,000 combined single limit per accident
16. ENTIRE AGREEMENT: These TERMS AND CONDITIONS contain the entire agreement and understanding between the SELLER and the BUYER as to the subject matter hereof, and supercede all prior agreements, commitments, representations, and discussions between the SELLER and the BUYER pertaining to the sale of the ARTICLES.
17. MODIFICATION: BUYER understands and agrees that (a) no modification or waiver of these "TERMS AND CONDITIONS" shall be effective unless made by an authorized representative of SELLER in writing addressed to BUYER and specifically referring to this document; (b) no course of action on the part of SELLER shall be deemed to modify these "TERMS AND CONDITIONS"; and (c) SELLER'S acknowledgement of acceptance of anything in writing form BUYER which is in conflict with these "TERMS AND CONDITIONS" and any subsequent delivery of ARTICLES shall not constitute a modification or waiver of these "TERMS AND CONDITIONS".