1. Acceptance – Acceptance of this Agreement by AFA is contingent upon (1) a satisfactory credit report of Purchaser and (2) with regard to the dollar amounts stated herein, the absence of any mathematical error or deviation from AFA standard prices..
2. Payment – Purchaser agrees to pay the Net Amount set forth on the face of this Agreement.All quotations are F.O.B. shipping point, and all transportation, rigging, drayage, uncrating and similar charges will be paid by Purchaser.
IF PAYMENT IS NOT RECEIVED WITHIN TEN DAYS FROM DATE OF INVOICE FOR LABOR (AND THIRTY (30) DAYS FROM DATE OF INVOICE FOR MATERIAL) PURCHASER AGREES TO PAY INTEREST THEREON AT A RATE EQUAL TO THE LESSER OF 1 ½% PER MONTH OR THE MAXIMUM INTEREST RATE PERMITTED BY LAW.
Any Payments due for equipment purchases shall not be contingent upon any test in place.
3. Title – Until full payment of the Net Amount, Purchaser hereby grants AFA a purchase money security interest in the equipment sold hereunder in accordance with the Uniform Commercial Code. AFA may, at any time, file a copy of this Agreement or a financing statement (which Purchaser agrees to execute upon AFA’s request) with appropriate authorities as a financing statement in order to perfect AFA’s security interest. Any such filing shall not constitute acceptance of this Agreement by AFA. Title shall not pass to Purchaser until the Net Amount (including all freight and taxes, if applicable) has been paid.
4. Default – If Purchaser defaults hereunder, if a Petition in Bankruptcy is filed, or any proceeding under any bankruptcy, insolvency or similar law is commenced by or against Purchaser, or if Purchaser makes an assignment for the benefit of creditors:
a. AFA, in addition to other remedies, may repossess the equipment without notice; and Purchaser grants to AFA all rights to enter the job site which Purchaser may have in order to enable AFA to effect such repossession.
b. Purchaser agrees to pay AFA costs and expenses of collection and/or repossession, including the maximum attorney’s fee permitted by law.
5. Risk of Loss – Risk of loss or destruction of or damage to the equipment shall pass to Purchaser upon the earlier of delivery to Purchaser or delivery to a carrier for delivery to Purchaser. Merchandise received by Purchaser shall be inspected for damage and quantity counts, at time of receipt and, if not objected to in writing within thirty (30) days thereafter, shall be deemed accepted by Purchaser as to condition and quantity, and the Purchaser shall be responsible for all merchandise thereafter.
6. Warranty – AFA warrants the equipment to be free from manufacturing defects for a period of 90 days from installation or 90 days from the shipment of the equipment or components F.O.B. shipping point, whichever period expires first.
PURCHASER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO IT OR RELIED UPON BY IT WITH RESPECT TO THE PURPOSE, QUALITY AND FUNCTION OF THE EQUIPMENT. THIS WARRANTY SHALL NOT APPLY TO THE EQUIPMENT OR ANY PART THEREOF WHICH HAS BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, TAMPERING, ALTERATION, ABUSE OR MISUSE, OR IF DAMAGE TO THE EQUIPMENT HAS BEEN CAUSED BY ATTACHMENT THERETO OR USE IN CONNECTION THEREWITH OF PARTS, COMPONENTS AND/OR EQUIPMENT NOT SOLD BY AFA. IN NO EVENT WILL AFA HAVE ANY OBLIGATIONS OR LIABILITY FOR DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL OR SPECIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Taxes – There shall be added to the Net Amount; amounts equal to any taxes however designated, levied or based thereon or on this Agreement or the equipment, including state and local privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by AFA in respect of the foregoing, exclusive, however, of taxes based solely on AFA’s net income.
8. Delivery – AFA shall not be liable for failure to deliver or for delays in delivery occasioned in whole or in part by causes beyond its control, including, without limitation, strikes and other labor disputes, fires, embargoes, war or civil disturbance, acts of God, inability to obtain transportation or shipping space for materials, machinery breakdowns, delays of carriers or suppliers and governmental acts and regulations.
9. Cancellation and Returned Equipment – Orders may be cancelled only with AFA’s written consent and upon payment of reasonable and proper cancellation charges. Goods may be returned only when specifically authorized in writing by AFA, and Purchaser will be charged, for placing returned goods in saleable condition, any sales expenses then incurred by AFA plus a restocking charge and any out going and in coming transportation costs which AFA pays.
10. General – AFA shall not be liable for incidental consequential damages. This Agreement (1) constitutes the entire contract between Purchaser and AFA, and (2) supersedes all prior correspondence and communications between Purchaser and AFA, with respect to the equipment, including any parts or equipment furnished as a replacement. No representation or statement not expressed herein shall be binding on AFA. THE FOREGOING TERMS AND CONDITIONS SHALL PREVAIL NOTWITHSTANDING ANY VARIANCE WITH THE TERMS AND CONDITIONS OF ANY ORDER SUBMITTED BY PURCHASER WITH RESPECT TO THE EQUIPMENT. Purchaser’s signature on this Agreement, or by acknowledging this proposal in a Purchase Order, or by acceptance of delivery shall constitute Purchaser’s acceptance of these terms and conditions. This agreement may not be assigned without AFA’s prior written consent. All information with respect to the design, operation or other characteristics of the equipment furnished directly or indirectly by AFA (except such information as may be established to be in the public domain) shall be received and held by Purchaser in confidence, and Purchaser shall exercise reasonable care to prevent the improper use of such information.
11. Maintenance – In the event Purchaser elects to include warranty period maintenance option (“Option”) AFA shall perform all necessary maintenance and warranty related repairs on Purchaser’s installed system at the premises listed in the Option for one (1) year. This Option shall extend solely to the equipment provided for in this Agreement with the exception of conduit,it is expressly understood and agreed that in accepting this Option and in maintaining the equipment and in granting the service herein described, AFA makes no warranties which extend beyond the description contained in this agreement except: It is agreed that all maintenance provided for hereunder shall be performed during regular daytime business hours exclusive of Saturdays, Sundays and holidays unless the Purchaser otherwise directs in which case the Purchaser hereby agrees to pay AFA any increased cost resulting therefrom. Maintenance under the Option shall not become effective until all equipment delivered under this Agreement is paid for in full.
12. Limited Liability – IT IS UNDERSTOOD THAT NEITHER AFA NOR ANY THIRD PARTY DESIGNATED BY AFA WHICH PROVIDES SERVICES TO THE PURCHASER IS AN INSURER. THAT INSURANCE, IF ANY, SHALL BE OBTAINED BY THE PURCHASER AND THAT THE AMOUNTS PAYABLE TO AFA HEREUNDER ARE BASED UPON THE VALUE OF THE SERVICES AND THE SCOPE OF LIABILITY AS HEREIN SET FORTH AND ARE UNRELATED TO THE VALUE OF THE PURCHASER’S PROPERTY OR THE PROPERTY OF OTHERS LOCATED IN PURCHASER’S PREMISES. AFA MAKES NO GUARANTEE OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, THAT THE SYSTEM OR SERVICES SUPPLIED WILL AVERT OR PREVENT OCCURRENCES, THE CONSEQUENCES THEREFROM, WHICH THE SYSTEM OR SERVICE IS DESIGNED TO DETECT. THE PURCHASER DOES NOT DESIRE THIS CONTRACT TO PROVIDE FOR FULL LIABILITY OF AFA OR ANY SUCH THIRD PARTY AND AGREES THAT AFA AND ANY SUCH THIRD PARTY SHALL BE EXEMPT FROM LIABILITY FOR LOSS OR DAMAGE DUE DIRECTLY OR INDIRECTLY TO OCCURRENCES, OR CONSEQUENCES THEREFROM, WHICH THE SERVICE IS DESIGNED TO DETECT OR AVERT; THAT IF AFA OR ANY SUCH THIRD PARTY SHOULD BE FOUND LIABLE FOR LOSS OR DAMAGE DUE TO A FAILURE OF SERVICE IN ANY RESPECT, ITS LIABILITY SHALL BE LIMITED TO $250 AND THAT THE PROVISIONS OF THIS PARAGRAPH SHALL APPLY IF LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS DIRECTLY OR INDIRECTLY TO PERSON OR PROPERTY FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED BY THIS CONTRACT OR FROM NEGLIGENCE OF ANY DEGREE, ACTIVE OR OTHERWISE OF AFA AND ANY SUCH THIRD PARTY AND THEIR AGENTS OR EMPLOYEES. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST AFA MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF THE CAUSE OF ACTION THEREFORE.
THE PURCHASER IS HEREBY GIVEN AN ABSOLUTE AND UNEQUIVOCAL OPTION TO REQUIRE AFA TO ASSUME LIABILITY BEYOND THAT INDICATED ABOVE. IF THE PURCHASER EXERCISES SUCH OPTION, A RIDER TO THIS CONTRACT WILL BE ENTERED INTO AND SIGNED BY THE PARTIES HERETO PROVIDING FOR THE EXTEND OF AFA’S ADDITIONAL LIABILITY IN CONSIDERATION FOR WHICH THE PURCHASER AGREES TO PAY AFA ADDITIONAL SERVICE CHARGES SPECIFIED IN THE RIDER WHICH SHALL BE CONSONANT WITH AFA’S ADDITIONAL COST OF OBTAINING LIABILITY INSURANCE COVERING THE FULL SCOPE OF LIABILITY REQUESTED BY THE PURCHASER, IN WHICH EVENT THE CLAUSE ABOVE WILL BE NULL AND VOID, PROVIDED, HOWEVER, THAT SUCH ADDITIONAL OBLIGATION SHALL IN NO WAY BE INTERPRETED TO HOLD AFA AS AN INSURER.
13. It is understood and agreed that if AFA is contracted to provide NYC Building/Fire Department filing services and it is later determined that the project has been previously filed by others, only 50% of the contracted amount attributable to filing services will be refunded by AFA.
14. Severability – If any term, covenant, condition or provision of this Contract is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated.