Kermit's Machinery

TERMS AND CONDITIONS OF SALE

1. Exclusive Terms. All of the buyer’s orders with, and sales of equipment to the buyer (which is the party identified under ‘Sold to’ on the front of the Sales Order) by, Kermit’s Machinery LLC (‘Kermit’s Machinery ‘) are subject to these General Terms and Conditions and also the following: the front and back of Kermit’s Machinery’ quotation, invoices, order acknowledgments and other documents issued by Kermit’s Machinery in connection with the order or sale (collectively, this ‘Agreement’). It is a material condition to all sales hereunder that the terms and conditions set forth in this Agreement constitute the entire agreement between the buyer and Kermit’s Machinery LLC. The buyer’s signature below, or if not signed, then buyer’s acceptance of any equipment or services from Kermit’s Machinery constitutes buyer’s acceptance of this Agreement. No conflicting, varying or additional terms or conditions which may appear in any prior or subsequent purchase order or any other buyer’s documents are of any force or effect, and Kermit’s Machinery hereby expressly rejects and objects to the same, this Agreement being the complete agreement of the parties.
2. Definition of Used Equipment: Kermit’s Machinery is a broker for used equipment. Buyer acknowledges and agrees that used equipment sold by Kermit’s Machinery is defined as: “Used Equipment is equipment previously owned and/or operated by individuals or business entities, other than Kermit’s Machinery“. When purchasing equipment from Kermit’s Machinery, buyer will agree to indemnify and release Kermit’s Machinery, its directors, officers, employees, and other representatives from any and all liability associated with property damage or bodily injury resulting from the prior use or condition of the equipment. This indemnification shall transfer to future sales or other disposition of said equipment purchased through Kermit’s Machinery.
3. Prices and Terms. All sales by Kermit’s Machinery are made in Los Angeles, California. Accordingly, all orders must be accepted by Kermit’s Machinery in Los Angeles, California, otherwise the order is deemed rejected, and all payments must be made to Kermit’s Machinery in Los Angeles, California. The prices for equipment and services are as set forth in Kermit’s Machinery’ invoices, and are exclusive of all shipping, insurance, handling and storage charges, duties and/or sales, use, excise or other taxes, domestic or foreign, and administration, handling, packing and freight forwarding fees by Kermit’s Machinery , all of which must be paid by the buyer. If Kermit’s Machinery undertakes to handle shipping for the buyer, Kermit’s Machinery will choose the shipper and mode of shipment. No order may be cancelled by the buyer and no equipment returned to Kermit’s Machinery without Kermit’s Machinery’ prior written authorization. Except as otherwise agreed to by Kermit’s Machinery in writing, payment of all amounts is due in full at or before delivery. Any amount that is not paid when due will bear interest at the lesser of 18% per annum or the maximum rate allowable by law. The buyer authorizes Kermit’s Machinery to obtain credit reports and make other credit inquiries as Kermit’s Machinery deems necessary.
4. Title to Product; Security Interest. Until the buyer indefeasibly pays all amounts due therefore, Kermit’s Machinery retains title to all equipment. Without limiting the foregoing, the buyer also grants Kermit’s Machinery a security interest in all equipment purchased hereunder as security for the buyer’s performance of all of its obligations and payment of all amounts due from it hereunder, which may be a purchase money security interest, and which the buyer warrants will be first and best. While title or a security interest remains with Kermit’s Machinery, equipment will remain separate personal property, regardless of whether attached to other property, at the address to which it was delivered by Kermit’s Machinery and the buyer will retain possession and control. The buyer will perform all acts necessary to perfect and assure retention of title and perfection of security interest in Kermit’s Machinery, including but not limited to execution and delivery of security agreement(s), promissory note(s) and/or financing statement(s). This Agreement may be filed as a financing statement and the buyer appoints Kermit’s Machinery as its attorney-in-fact to execute other financing statements, which power of attorney is coupled with an interest and is irrevocable.
5. Insurance and Risk of Loss. The buyer acknowledges and agrees that it bears the risk of loss, theft, destruction of, damage and all other casualties to the equipment from any cause whatsoever (‘Losses’), from and after tender of delivery of the equipment to the buyer or the carrier. For so long as the buyer owes Kermit’s Machinery any amount for equipment, the buyer will keep, at its cost, the equipment insured with insurance companies and in such amounts as are acceptable to Kermit’s Machinery against all Losses, naming Kermit’s Machinery as loss payee and additional insured and the buyer agrees to provide Kermit’s Machinery with a certificate or other evidence of such insurance acceptable to Kermit’s Machinery. Absent compliance with the foregoing, Kermit’s Machinery shall have the right, but not the obligation, to obtain such insurance for the buyer, in which event the buyer agrees to pay Kermit’s Machinery for all costs thereof.
6. Inspection; Selection of Product; Disclaimer of Warranties. At the time of delivery, the buyer shall inspect all equipment. The buyer’s failure to reject equipment in writing (delivered to Kermit’s Machinery’ principal office) at the time of delivery shall be conclusive evidence that the buyer has accepted the equipment. No order may be cancelled by the buyer and no equipment returned to Kermit’s Machinery without Kermit’s Machinery’ prior written authorization. Kermit’s Machinery will not be responsible for any ‘loss of business’ or other liability associated with the order cancellation. Kermit’s Machinery will not be responsible for any inconsistencies or oversight related to the purchase of the equipment. All equipment and services are sold by Kermit’s Machinery ‘AS IS.’ and ‘Where Is’ and all information relating to the purchase of the equipment is deemed reliable but not guaranteed. KERMIT’S MACHINERY MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, CONDITION, PATENT, INFRINGEMENT, TITLE OR OTHERWISE, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES. Kermit’s Machinery shall not be liable to the buyer nor shall the buyer have any remedy against Kermit’s Machinery for any loss, damage or expense of any kind, including but not limited to, liability for consequential, special, incidental or punitive damages or loss of profits, lost data, or for damages based upon strict or absolute liability in tort, damages in contract or by statute, caused directly or indirectly by any equipment purchased from Kermit’s Machinery, and the buyer agrees to defend Kermit’s Machinery, indemnify and hold Kermit’s Machinery harmless for any and all such damages or claims of third parties related to equipment sold and/or installed by or for the buyer.
7. Default. In the event that the buyer fails to pay any amount or perform any obligation under this Agreement when due, or becomes insolvent, it will be in default of this Agreement. In the event of buyer’s default: Kermit’s Machinery may repossess equipment to which it retains title; may execute on any security interest it has in equipment and may exercise all of the rights of a secured creditor under Article 9 of the Uniform Commercial Code; may declare immediately due and payable all amounts owed by the buyer to Kermit’s Machinery ; may cancel and terminate this Agreement; may suspend the buyer’s rights and Kermit’s Machinery ‘s obligations under this Agreement for so long as a default exists; and may exercise any and all other rights at law and in equity. If directed to by Kermit’s Machinery , the buyer shall make the equipment available to Kermit’s Machinery for repossession or Kermit’s Machinery may repossess equipment without prior demand or notice to the buyer, and in either case without court proceedings. Kermit’s Machinery’ rights and remedies upon default by the buyer are cumulative, not exclusive, and may be exercised by Kermit’s Machinery in any order at its election.
8. General Provisions. The buyer agrees not to disclose to others or to use any confidential information of Kermit’s Machinery. The buyer may not assign or delegate this Agreement or any rights or duties hereunder, and any attempt to do so shall be void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. Amendments of this Agreement and waiver of any terms or performance must be in writing executed by the parties prior to completion of the purchase. This Agreement is governed by California law without regard to conflict of laws. All actions on this Agreement shall be brought in the courts, state or Kermit’s Machinery, sitting in Los Angeles, California, provided that Kermit’s Machinery may elect to commence actions in other forums and jurisdictions if it deems it necessary to protect its interests in the equipment. Kermit’s Machinery shall be entitled to recover from the buyer Kermit’s Machinery’ reasonable attorneys’ fees and costs and expenses incurred by it in any action if Kermit’s Machinery is the prevailing party, and if allowed by applicable law. The buyer expressly waives trial by jury in any action related to this Agreement. This Agreement is the entire agreement between the parties relating to the subject matter hereof and all prior discussions and agreements are merged herein. All notices may be delivered by hand, courier service, express mail, fax or email, and are deemed made when delivered. The undersigned execute this document as of the latest date shown below as their agreement to these terms and conditions and the Agreement of which they form a part.

Kermit’s Machinery “Seller”

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“Buyer”

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