Hillary Machinery Standard Terms and Conditions of Sale
These terms and conditions govern the sale of CNC machine tool Products and/or Services (“Product and/or Service”) provided by Hillary Machinery (HMI) and its affiliates (“Seller”) as well as by third party vendors, manufacturers and/or service providers of Seller as listed and described in the Order (“Orders, Sales Order, Sales Order Acknowledgement, Quote, Proposal, Invoice”) including but not limited to any accessories, services, transportation, and/or rigging if so included in the Order of machine tool Products. These terms and conditions (“Agreement”) take precedence over Buyer’s (“Buyer, Customer or Purchaser”) supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. HMI’s failure to object to conflicting or additional terms will not change or add to the terms of this agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
1.Orders: All Orders placed by Buyer are subject to acceptance by Seller. Orders may not be canceled or rescheduled without HMI’s written consent. All Orders must identify the Products, unit quantities, part numbers, estimated delivery, and applicable prices of the Products being purchased. Unless otherwise noted in the Order, all items will be shipped when manufacturing is complete and/or domestically available to ship. Seller may at its sole discretion re-allocate Product among its customers to meet delivery expectations, assuming those Products are functionally identical.
2.Prices: The final prices of the Products are those prices specified in the Invoice. Pricing for undelivered Products may be increased (or decreased) in the event of an increase (or decrease) in Seller’s cost, change in market conditions, prior sale, or any other causes beyond the Seller’s reasonable control and upon written notification to Buyer. Unless otherwise noted in Order, prices shall automatically expire in thirty (30) days from the date of same.
3.Taxes: Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state and local sales, excise and value added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.
4.Payment: Payment may be made by check, money order, or bank wire (all fees are borne by the Buyer). Unless Order states otherwise, where Seller has extended credit to Buyer, terms of payment require 20% (of Order total) in advance from Buyer at time of purchase with remaining balance of Order paid by Buyer no later than thirty (30) days from date of the Order’s shipment (or completion date of Service performed), without offset or deduction. On any past due invoice, Seller may impose interest at the rate of one and one-half percent [1.5%] per month. If Buyer fails to make payment when it is due, Seller reserves the right to interrupt service, change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer and recover in its entirety, all Products described in Order delivered. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to recovery of attorney fees, court costs and fees, and collections costs.
5.Shipment, Delivery, Acceptance and Title: Shipment occurs when the Product is loaded and released to the carrier at shipping point. The Product’s arrival (or any portion thereof) on-board the carrier at the Buyer’s ‘Ship To’ address described in the Order, constitutes Delivery. Any utilization of the Product by the Buyer including, but not limited to powering on, setting up, installing tooling, and/or programming, constitutes Acceptance. Title and risk of loss pass to the Buyer upon loading and release of the Product to the carrier. Deliveries will be made “FOB USA Shipping Point” or Free On-Board from point of USA based shipment. Seller’s delivery dates are estimates only and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. Physical delivery of any line item, component, or portion of the order constitutes delivery of same and is therefore subject to payment terms described in paragraph 4. A delayed delivery of any part of an Order does not entitle Buyer to withhold payment of entire order, nor does it entitle buyer to cancel the Order or any portion of the Order. Buyer may elect to withhold payment on any undelivered line item, component, or portion of the Order with Seller’s written consent.
6.Returns, Refunds and Exchanges:
Only products originally shipped from HMI or from an authorized supplier (drop-ship) will be considered for return to HMI. By a Customer requesting return of products to HMI, the Customer certifies that the products were purchased from HMI and there has been no substitution of the product from another supplier, distributor or other source of the product. Any return must be in the original packaging and in unused condition except if approved for failure analysis/warranty evaluation by HMI via a Return Material Authorization (RMA).
Return Freight / Restocking Fee:
HMI reserves the right to charge cancellation and restocking fees, at a minimum rate of 20% to be deducted from the Customer refund. HMI does not refund the original shipping and rigging if part of the original Order. Customer is responsible for all rigging and return freight charges. HMI does not accept COD shipments. Any deposit paid to HMI by Buyer may be deemed non-refundable to Buyer.
Upon receipt and inspection of returned item(s), HMI will advise of the refund status. In the case of factory warranty or failure analysis, HMI will issue any applicable credit pending manufacturer confirmation of failure. HMI initiates credits via the original method of payment within 48 hours of approval.
7.Limited Warranty: Final commissioning and warranty activation of the Product requires that the Machine Installation Record (MIR) be submitted and accepted by the Seller and/or Seller’s affiliates to obtain a Permanent Operation Code (POC), if the Product is so equipped. The Seller and/or Seller’s affiliates reserve the right to withhold POC if Payment obligations are not met, which may render Product temporarily inoperable.
Unless otherwise stated in Order Seller warrants to the original purchaser, other than a purchaser for resale, that Seller’s machine tools shall be free of defects in materials and workmanship. For a period of one (1) year from completion of installation, or for a period of fifteen (15) months from date of shipment, whichever is earlier. Seller will, at its sole and exclusive discretion, either replace or repair any machine or part thereof defective in workmanship or material, at no charge to the Purchaser.
All warranty repairs must either be performed by or authorized by a Seller. To obtain warranty service, Purchaser must contact the Seller. Purchaser must provide verification of the date of delivery/installation when requesting warranty service (dated installation report, MIR). Ground freight charges (UPS regular or common carrier truck) for all warranty replacement parts are paid by Seller. If machine is not operational, the Seller will pay next - day air shipment charges for necessary parts weighing 100 lbs. or less. Materials or parts alleged to be defective shall be returned to Seller, at Seller’s request, transportation charges prepaid. After the warranty repair or replacement of a defective part, Seller warranty for such part shall continue for ninety (90) days or for the remainder of the original Limited Warranty, whichever is longer.
This warranty shall remain in effect only if the machine is used and maintained in accordance with all operating and maintenance instructions set forth in the manuals and instruction sheets furnished by the Seller. The Seller shall have no liability to initiate or continue to service or support the Product if the Purchaser has not fulfilled its Payment obligations (see Paragraph #4). Buyer is hereby No allowance will be made for repairs or alterations made without Seller’s prior written consent or approval. The limited warranty provided by Seller excludes the following:
1.Damage, malfunction, or failure caused by or resulting from improper maintenance, misuse, neglect, accident or any other cause beyond the control of the Seller.
2.Damage, malfunction, or failure caused by modification of the machine (mechanical or electrical) Without written authorization by Seller.
3.Damage, malfunction or failure caused by installation or use of accessories or peripherals not purchased through or authorized in writing by Seller.
4.Paint, batteries, filters, fluids, fuses, light bulbs, or any commonly expendable item.
5.Damage to machines and/or components while being transported from Seller’s warehouse or facility to destination.
6.Accessories or peripherals not manufactured by Seller, which shall be subject only to whatever warranty that is supplied by the manufacturer of such product.
7.Fanuc CNC control, Fanuc spindle motors and Fanuc servo motors, spindle and servo drives, which are covered by a two (2) year manufacturer warranty.
No person, agent, distributor, dealer or company is authorized to change, modify or amend the terms of this Limited Warranty in any manner. Seller makes no warranties, guarantees or representations, express or implied with respect to the machine tool, or parts thereof, except to the extent such warranty is set forth herein. The equipment covered does not necessarily comply with any codes or standards unless specifically quoted, ordered, and so accepted.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY USE OR PURPOSE. HWMA’s LIABILITY UNDER THIS WARRANTY IS EXPRESSLY LIMITED TO ITS PROMISE TO REPAIR OR REPLACE THE DEFECTIVE GOODS. HWMA SHALL HAVE NO FURTHER LIABILITY IN CONTRACT OR NEGLIGENCE
8.Limitation of Liabilities: BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.
9.Export Control: Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer understands that the associated hardware, software, and/or technical data
(“products”) listed on their Purchase Order includes items that are governed by the U.S. Export Administration Regulations (“EAR”), by the U.S. Foreign Assets Control Regulations (“OFAC”) and the International Traffic in Arms Regulations (“ITAR”). The Buyer understands that its sale or distribution of said products may constitute exports or re-exports, and as such, must be in accordance with the requirements administered by Bureau of Industry and Security, Department of Treasury, and Department of State. It is understood that the country of ultimate destination, commodity classification, end-user, or end-use for any said products, could affect the applicable license requirements and exportability. The Buyer agrees to consult various resources, such as the EAR, ITAR, and OFAC, by the U.S. Department of Commerce’s Bureau of Industry and Security’s (“BIS”) Export Counseling Division, and other appropriate Government Sources to ensure that the sales and distribution of said products, is processed in accordance with all applicable laws. The Seller will not transfer any export-controlled products to a “non-U.S. Person” without the proper authority of the United States Government, and the buyer’s written approval.
10.Use of Products: Unless otherwise noted, Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
11.Force Majeure: Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.
12.Technical Assistance or Advice: If technical assistance or advice is offered or given to Buyer free of charge, Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.
13.General: (a) The laws of the State to where the Product is shipped and installed, will exclusively govern any dispute between Seller and Buyer, (b) Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successor and assigns, (c) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses.