GENERAL: As used herein, “Astec” is Astec, Inc. or its affiliates and “Purchaser” is the person or entity identified as the purchaser in Astec’s order acknowledgement, invoice or packing slip (the “Order Acknowledgement“). As used herein, “Equipment” is the equipment and/or parts identified in the Order Acknowledgement and is limited to what is as expressly agreed to be provided by Astec to Purchaser in the Order Acknowledgement. These Parts General Terms and Conditions of Sale (the “Terms“) and the Order Acknowledgement are collectively referred to in the Terms as the “Agreement“. The Agreement sets forth the entire, exclusive and complete agreement of Astec and Purchaser with respect to the sale and purchase of the Equipment and supersedes any prior or contemporaneous written or oral agreement, understanding and communications and any course of dealing, usage of trade or course of performance. This Agreement prevails over any of Purchaser’s terms and conditions of purchase or purchase order, regardless of whether or when Purchaser submitted such terms and conditions or purchase order. No waiver or modification of any of part of this Agreement shall be effective unless in writing and signed by both Astec and Purchaser.
PRICE; PAYMENT: The purchase Price for the Equipment is set forth in the Order Acknowledgement. Purchaser shall make all payments in U.S. dollars. Unless otherwise agreed to in the Order Acknowledgement, payment is due Net 30 after Astec invoice. The Price does not include shipping which, if applicable, will be invoiced as a separate line item.
DELIVERY: Unless otherwise mutually agreed, delivery is EXW Astec site Incoterms 2020. Commercially reasonable efforts will be made to meet scheduled shipment dates, however any dates provided by Astec are not guaranteed and Astec will not be liable for any losses, costs or damages
PACKING: The Price includes Astec standard packing. If Purchaser requires special packing, the extra cost caused thereby shall be borne by Purchaser.
SHIPPING: Unless otherwise mutually agreed, all transportation charges from point of shipment to point of destination shall be arranged for and paid by Purchaser. If Astec is responsible for shipping, Purchaser will pay Astec for all shipping and handling charges in addition to the Price. Unless otherwise mutually agreed, Purchaser shall control the type of transportation and routing. Should Purchaser request Astec ship the Equipment and not request a specific type of transportation or routing, Astec will choose the most appropriate means of transportation type and routing given the circumstances and information provided by Purchaser.
CONFIDENTIALITY: All non-public, confidential or proprietary information of Astec, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, purchaser lists, pricing, discounts or rebates, disclosed by Astec to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement shall be treated by Purchaser as confidential and may not be disclosed to any third party or copied by Purchaser unless authorized in advance by Astec in writing. Upon Astec’s request, Purchaser shall return all documents and other materials received from Astec. Astec shall be entitled to seek injunctive relief for any violation of this Paragraph 6. This Paragraph 6 does not apply to information that is: (a) in the public domain; (b) Purchaser can show was known to Purchaser at the time of disclosure; or (c) Purchaser can show was rightfully obtained by Purchaser on a non-confidential basis from a third party, confidentiality, non-disclosure and non-use obligations herein shall remain in force to the maximum term permitted by applicable law.
WARRANTY:
Astec warrants that upon shipment and continuing for a period of sixty (60) days from shipment (the”Equipment Warranty Period“), that the Astec manufactured Equipment will be free of defects in design, workmanship, or material, provided any operation of the Equipment by Purchaser has been in accordance with generally approved practice as instructed by Astec service personnel or set forth in Astec service instructions, if any, and provided that Purchaser notifies Astec in writing as soon as such defect becomes apparent, but in all events during the Equipment Warranty Period. Astec shall repair, or at its option replace FCA point of shipment, any defective Equipment or parts covered by the warranty. The right to have defective Equipment repaired or replaced shall constitute the sole and exclusive remedy for breach of this limited Equipment warranty. Labor for defective Equipment repair will be paid by Purchaser under a formula determined by Astec.
Astec makes no warranties or guarantees with respect to Equipment not manufactured by Astec, including but not limited to diesel engines, motors, scales, speed reducers, and other assemblies, valves, solenoids, and other parts and accessories. Liners, castings, and furnace refractories, which are subject to wide variations of destructive service, are also not covered by the Equipment warranty and are a maintenance responsibility of Purchaser from the beginning of operation. Astec will pass through to Purchaser any warranties and limitations provided by the original manufacturer of parts used in the Equipment manufactured by Astec, but Astec does not provide any warranty as to such items.
No warranty shall apply to Equipment which has been repaired or altered by others so as, in Astec’s judgment, to adversely affect the same or which shall have been subject to negligence, accident, abuse or improper care, installation, maintenance, storage or other than normal use or service, during or after shipment. No warranty shall apply to any used Equipment or for ordinary wear and tear, or ordinary corrosion or erosion. No warranty shall apply to any Equipment adversely affected by being used with any machinery, part or accessory not manufactured or authorized by Astec. No warranty shall apply to consumables or parts having a life expectancy shorter than the Equipment Warranty Period.
Astec does not warrant or represent that any Equipment furnished by it meets any federal, state or local safety, environmental or electrical regulations. Astec is wholly discharged from all liability under this warranty in the event that Purchaser fails to pay for the Equipment in accordance with the applicable purchase terms. This Equipment warranty extends only to the first end-user and is not transferable. This warranty may not be modified except pursuant to a written agreement signed by Astec.
THE EXPRESS WARRANTIES AND WARRANTY REMEDIES PROVIDED IN THIS PARAGRAPH 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES AND WARRANTY REMEDIES PROVIDED BY ASTEC TO PURCHASER AND ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED (EXCEPT WARRANTY OF TITLE), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY FROM COURSE OF DEALING OR USAGE OF TRADE, EACH OF WHICH IS HEREBY EXPRESSLY WAIVED AND DISCLAIMED.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE THAT IN NO EVENT OR CIRCUMSTANCE IS ASTEC LIABLE TO PURCHASER FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, COSTS OR LOSSES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR REVENUE, LOSS OF PRODUCTION, LOSS OF USE OR LOSS OF CONTRACTS, COSTS FOR RAW MATERIAL, ENERGY, UTILITY, LABOR OR CAPITAL OR FOR ANY OTHER INDIRECT LOSS; OR FOR CLAIMS RAISED BY PURCHASER BREACH OF CONTRACT OR WARRANTY, TERMINATION, NEGLIGENCE, TORT, STRICT LIABLITY, INDEMNITY AT LAW OR IN EQUITY OR OTHERWISE. IN NO EVENT SHALL ASTEC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ASTEC FOR THE EQUIPMENT SOLD HEREUNDER.
INSURANCE: From the date Astec notifies Purchaser that the Equipment is ready to ship, until the date Equipment is paid for in full, Purchaser shall provide and maintain insurance in an amount no less than the total value of the Equipment delivered hereunder which insurance provides coverage against customary casualties and risks, including fire and explosion, and shall also provide coverage against liability for accidents or injuries to the public or to employees, in the names of Astec and Purchaser, as their interest may appear, and in amounts satisfactory to Astec. If Purchaser fails to provide such insurance, it then becomes Purchaser’s responsibility to notify Astec so that Astec may provide same, and the cost thereof shall be added to the Price. All loss resulting from failure to affect such insurance shall be assumed by Purchaser.
SECURITY INTEREST; COST OF RECORDING: Purchaser hereby conveys and grants to Astec a purchase money security interest in the Equipment to secure payment by Purchaser of all amounts due hereunder including the Price and such other debts, obligations and liabilities of Purchaser to Astec which may now exist or hereafter arise, whether absolute or contingent, or primary or secondary, together with all extensions or renewals for the foregoing and all expenses, legal or otherwise (including court costs and reasonable attorney’s fees) incurred by Astec in collecting or endeavoring to collect any or all of the foregoing, in protecting any collateral and in enforcing this Agreement. The Equipment shall remain personal property in all respects notwithstanding the manner of annexation of any of the Equipment to realty. Purchaser agrees to execute any instrument or document considered necessary by Astec to perfect its security interest in the Equipment, including, but not limited to, financing statements, chattel mortgages, deeds of trust, deeds to secure debt, mortgages or other security instruments. Until default hereunder, Purchaser may have possession of the Equipment and use the same in any lawful manner not inconsistent with this Proposal or with any policy on insurance thereon. Purchaser will pay the costs and taxes due for recording and filing any Financing, Continuation or Termination Statements with respect to Astec’s security interest in the Equipment or in connection with any of the other security documents referred to above.
EQUIPMENT NOT TO BE REMOVED: As long as the security interest in the Equipment is retained by Astec, the Equipment shall not be removed from the erection site and Purchaser shall not permit, voluntarily or involuntarily, the Equipment or any part of it to be sold, transferred, encumbered, attached, seized or removed in any manner whatsoever.
DEFAULT: Upon default by Purchaser in the payment of the Price or any portion thereof when due or in the payment of all or any portion of any other indebtedness secured under this Agreement when due or in the performance of any other term or provision hereof, all unpaid amounts due Astec shall thereupon be immediately due and payable and Astec shall have the rights and remedies contained herein and the rights and remedies of a secured party under the Uniform Commercial Code of the State of Tennessee or under the laws of any other jurisdiction as a court of competent jurisdiction shall determine to be applicable. In the event of default, the following provisions shall apply: (a) Purchaser shall, upon request of Astec, assemble the Equipment and make it available to Astec at a place designated by Astec; (b) Astec may enter Purchaser’s premises where any part of the Equipment is located, and take possession of and remove all or any portion of the Equipment for purposes of disposition pursuant hereto; (c) Purchaser agrees that sales for cash or on credit to a wholesaler, retailer, or user or property of the type subject to this Agreement or at public auction or private sale are all commercially reasonable; (d) Astec shall give Purchaser notice of the time and place of any sale of any of the Equipment or of the time after which any private sale or any other intended disposition thereof is to be made by notice, postage prepaid and addressed to Purchaser at the latest address of Purchaser appearing on the records of Astec at least seven (7) days before the time of the sale or other disposition, which provisions for notice Purchaser and Astec agree are reasonable; (e) any proceeds of any disposition of any of the Equipment may be first applied by Astec to the payment of expenses in connection with exercising its rights and remedies hereunder, including reasonable attorney’s fees and legal expenses, and any balance of such proceeds may be applied as Astec may elect in its sole discretion; (f) if the sale or other disposition of the Equipment fails to satisfy in full obligations of Purchaser secured by this Agreement, and the reasonable expenses of retaking, holding, preparing for sale, selling and the like, including reasonable attorney’s fees and legal expenses incurred by Astec in connection with this Agreement or the obligation it secures, Purchaser shall be liable for any deficiency.
COMPLIANCE WITH APPLICABLE LAWS: Purchaser assumes all responsibility for complying with all federal, state and local statutes, laws, codes, regulations and ordinances in connection with the installation and operation of the Equipment and any other activity related thereto, including, without limitation, all federal, state and local environmental laws and regulations relating to pollution and protection of the environment and the Occupational Safety and Health Act and all rules and regulations promulgated thereunder.
PATENTS: In the event that any of the Equipment specified in this Agreement is based upon designs of or furnished by Purchaser, Purchaser shall indemnify Astec for any loss or expense incurred by it by reason of any claim for infringement of patents.
SHIPMENT:
If Purchaser is in default of any of its obligations under this Agreement, Astec may, at its election, withhold any further performance of its obligations and duties under this Agreement until such time as such default has been cured by Purchaser, in which event the anticipated date of shipment as set forth herein shall be adjusted accordingly. Astec shall not be liable or responsible for, nor shall the Price be reduced by any amount because of any matters beyond the control of Astec which delay or postpone the anticipated date set forth above for the delivery of the Equipment, such matters including, but not limited to, warlike acts, civil disorder, governmental restriction, acts of God, prior sale, acceptance of United States governmental contracts, strike, lockout, accidents, freight embargo, fire, flood, inability of Astec to obtain necessary materials, supplies, labor or transportation, pandemic, or any unforeseen water, soil or rock conditions.
If applicable, a detailed shipping list will accompany the bill of lading and Purchaser agrees to check the Equipment as it is unloaded and any claim for shortage against Astec will be made in writing within twenty-four (24) hours of time of unloading, to be followed by an affidavit (if required) from the person in charge of the unloading. Claims for loss or damage in transit will be made on the carrier by Purchaser.
Purchaser has full responsibility for erection and installation of the Equipment.
LATE CHARGES AND ATTORNEY’S FEES: Purchaser agrees that in the event any amount payable by Purchaser to Astec remains unpaid for more than 30 days, a service charge of 1.5% per month (18% per annum) or any portion thereof (or the highest rate of interest allowed by law, whichever is less) shall accrue on such unpaid amount beginning on the thirty-first (31st) day after such date payment is due. If the indebtedness, including late charges, arising out of this or any other transaction between Astec and Purchaser is placed in the hands of an attorney for collection, or is collected by and through an attorney, Purchaser will pay all costs of collection, including without limitation, court costs and reasonable attorney’s fees.
POSTPONED DELIVERY: lf, through no fault of Astec, delivery or shipment is delayed or postponed (including deferral of shipment requested by Purchaser), Purchaser shall pay to Astec any additional costs, including plant Equipment storage, handling, and insurance, incurred by Astec arising from such delay, deferral, or postponement, including invoicing and payment. Therefore, the balance remaining unpaid on the Price shall become due and payable. Purchaser shall bear the risk of loss of or damage to the Equipment during storage and thereafter.
SUSPENSION/CANCELLATION: This Agreement cannot be suspended or cancelled without the prior written consent of Astec, which may be withheld in the sole discretion of Astec. In no event will consent to suspension or cancellation be given without full reimbursement by Purchaser of all Astec’s expenses, damages and losses arising from such cancellation or suspension, plus reasonable overhead and profit allocation on such amounts.
SEVERABILITY: If any provision of this Agreement is found to be legally invalid or unenforceable: (i) the validity and enforceability of the remainder of this Agreement shall not be affected, (ii) such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and (iii) such provision shall be valid, enforceable and enforced in its modified form.
ASSIGNMENT: Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Astec. Any purported assignment or delegation in violation of this Paragraph 20 is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
LAW CONTROLLING: This Agreement and all questions regarding the performance of the parties hereunder shall be controlled by the laws of the State of Tennessee (without regard to conflicts of law). The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, or the transactions contemplated thereby.
DISPUTE RESOLUTION: Any dispute or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, and any related tort, statutory and equitable claims (each a “Dispute”), which the parties are not able to settle amicably within 3 months from the first written request for such settlement, shall be brought exclusively in a state or federal court in the State of Tennessee, County of Hamilton. The parties hereby waive any right to challenge such choice of jurisdiction or venue or to seek transfer to another jurisdiction. THE PARTIES FURTHER KNOWINGLY AND VOLUNTARILY WAIVE ANY RIGHT TO A JURY TRIAL OF THE DISPUTE.
TAXES: Prices quoted herein do not include any Federal, State or Municipal Taxes. If under existing or future law passed by the United States, any state or any municipality, Astec, in its opinion, is required to pay or collect a tax, impost or charge upon the manufacture, sale, use or assembly of the material described herein, the Price shall be increased by the amount of such tax, impost or charge. The amount of such increase is to be paid to Astec upon demand. If Purchaser holds resale tax permits and the material described herein is for resale, such information shall be shown by Purchaser.
BACK-CHARGES AND ALLOWANCES: Astec shall not be called upon to make any allowance for material, labor, repairs or alterations made for its account unless authorized by Astec in writing.
INSPECTION AND ACCEPTANCE PERIOD: Purchaser agrees to inspect the Equipment immediately after delivery, but in no event later than five (5) calendar days after such delivery (the “Acceptance Period“). Any defect discovered during the Acceptance period is subject to the procedures and remedies set forth in Paragraph 7 (Warranty).
RESPONSIBILITY OF PURCHASER FOR OPERATION OF EQUIPMENT: The operation of the Equipment at all times shall be the sole and exclusive responsibility of Purchaser. Any Services by Astec’s representatives shall be given solely in a consulting or advisory capacity and shall not release Purchaser in any manner whatsoever from its responsibility for operating the Equipment.
INDEMNIFICATION: Purchaser agrees to indemnify and hold harmless Astec, its affiliates and their respective employees from and against any and all liabilities, damages, obligations and claims (including, without limitation, court costs and reasonable attorney’s fees) arising from or with respect to the operation of the Equipment. Without limiting the generality of the preceding sentence, the parties acknowledge and agree that if a claim initially was brought against Astec for defective manufacture, design or the like and was finally determined by a court of competent jurisdiction or otherwise settled (such settlement being with Purchaser’s consent) on a basis relating to the negligent operation or use of the Equipment, Astec would be entitled to indemnification pursuant to the provisions of the preceding sentence.
TITLE AND RISK OF LOSS:Title to the Equipment shall pass to Purchaser upon shipment or offer to ship should shipment be delayed by Purchaser. The risk of loss or damage to the Equipment shall pass to Byer upon delivery (EXW point of shipment, Incoterms 2020), unless transferred earlier in accordance with Paragraph 17 (Postponed Delivery).
NOTICES: Any notices given between the parties under this Agreement may be given by courier, personal delivery or mail, postage prepaid, or by e-mail. The date of service shall be the date on which the notice is received. A copy of all notices to Astec shall be sent to: Astec, Inc., 1725 Shepherd Road, Chattanooga, TN 37421, Attn: Legal Counsel.
