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TERMS AND CONDITIONS – READ CAREFULLY

 

1.   This Sales and Security Agreement (hereinafter referred to as the “Agreement” or “Security Agreement”), including the terms and conditions that follow, supercedes any prior understanding or written or oral agreement between the parties, and constitutes the entire agreement between the parties and any understanding or representation not contained herein is hereby expressly waived. It is expressly understood that no representative of the Seller has the power to modify the provisions hereof in any respect, that Seller shall not be bound by, or liable to, Purchaser for any representation, promise or endorsement made by any agent or person in Seller’s employment not set forth in this Agreement, and no modification or amendment of this instrument shall be binding on the Seller unless set forth in writing and signed by an authorized officer of the Seller.

2.    If the Purchaser claims sales or use tax exemption on all or part of the machinery and equipment, the Purchaser must provide Seller with a tax exemption certificate acceptable to Seller. This Agreement is subject to any increase in price that Seller may receive from the manufacturer and Purchaser agrees to pay any such increased price. Any changes in material or design can be made in the products sold by Seller and Seller is under no obligation to make such changes on products previously sold and delivered.

3.     If the full purchase price is not paid in cash at or before delivery, the Purchaser shall, at or before delivery, execute and deliver to Seller, a promissory note or a series of promissory notes accompanied by an installment sales contract, equipment lease or security agreement, as applicable, UCC 1 or such other lien instrument in form appropriate for the state where the machinery and equipment will be located and as may be required by Seller, provided, however, that title to all machinery and equipment referred to in this Agreement shall remain in Seller, until the full purchase price has been paid. If the Purchaser fails to execute and deliver such promissory note or series of promissory notes and installment sales contract, equipment lease, security agreement, as applicable, or other lien instrument as Seller may request, the full purchase price shall forthwith become due and payable. Until the full purchase price has been paid by the Purchaser, the Purchaser shall not remove any of the machinery and equipment from the premises where they were originally installed without the prior written consent of Seller.

4.     To secure the payment of the purchase price of the equipment described herein, the payment of interest on said amount as hereinafter set forth and the payment of reasonable attorney’s fees and other legal expenses incurred by Seller as hereinafter set forth, Purchaser hereby grants to Seller a security interest in all goods and any and all equipment, parts, accessories, attachments, additions and other goods, and all replacements thereof, now or hereinafter installed in, affixed to or used in connection with said goods, and if Purchaser sells or otherwise disposes of the goods in violation of the terms of this Agreement, Seller shall have a security interest in the proceeds of such sale or disposition until all payments due from Purchaser to Seller are made in full (the “Collateral”). In the event the Purchaser fails to pay when due any indebtedness secured by this Security Agreement, Purchaser shall be deemed in default under this Sales and Security Agreement, and Seller shall have all the rights and remedies granted under Florida Law, including, but not limited to, the rights and remedies under the Uniform Commercial Code, and the right to Replevin or repossess the Collateral. In addition, Seller may require Purchaser to assemble the Collateral and make it available to Seller at any place designated by Seller that is reasonably convenient to both parties. The respective names and addresses of Purchaser and Seller are set forth herein. Purchaser and Seller agree that this Sales and Security Agreement, or a copy thereof, may be used as a Financing Statement, and Purchaser hereby appoints Seller as Purchaser’s Attorney-in-Fact for the limited purpose of filing a Financing Statement on the Collateral.

5.     In addition to the rights and remedies set forth above, if the Purchaser is in default under any of the terms or provisions of this Agreement, Seller, at its option, may retain all payments made by the Purchaser hereunder as and for Liquidated Damages incurred by Seller. The parties expressly agree that said Liquidated Damages are not a penalty and are reasonable under the circumstances. Purchaser agrees that if this Agreement is cancelled by Purchaser, or if Purchaser is unable to fulfill the total covenants and obligations as provided for and contained in this Agreement, any money paid herewith as a deposit shall become the absolute property of Seller as partial compensation of Purchaser’s failure to perform its agreement. However, Seller shall also be entitled to immediately proceed under any applicable laws of the State of Florida to be compensated for the damages resulting from Purchaser’s breach. If Seller or its assigns retakes possession of the Collateral, Seller shall keep all payments made by Purchaser, and all rights of Purchaser shall then be extinguished, and Seller may forthwith sell the Collateral at public or private sale. Any action required to be taken for Purchaser’s failure to perform the terms or conditions of this Agreement shall result in Purchaser’s being responsible for the payment of reasonable attorney’s fees for any attorney engaged by Seller to protect its interests, all costs incurred, and interest on the unpaid balance at the maximum rate allowed by law from the date of Purchaser’s breach hereof payable on demand, whether the parties litigate or not, including any appellate or bankruptcy proceeding.

6.    Purchaser agrees that until the purchase price is paid in full or in the event that this Agreement is financed through the use of an installment sales contract or equipment lease, Purchaser will keep the equipment fully insured, including, but not limited to casualty, fire, theft, vandalism and malicious mischief insurance, for the benefit of Seller and Purchaser as their respective interest may appear and Purchaser shall furnish the Seller with a policy or certificate thereof prior to the date the equipment is delivered. Purchaser agrees the amount of all insurance carried in the collateral shall be an amount not less than that which shall provide for Seller to receive full compensation for the unpaid portion of the price due to Seller in case full or partial loss occur to Seller’s goods. If Purchaser fails to do so, Seller may obtain such insurance at Purchaser’s expense and Purchaser agrees to pay Seller the cost thereof.

7.     Seller shall not be liable for any damages caused by delay in delivery, including, but not limited to delay in delivery beyond its control , such as Acts of God, acts of the Purchaser, manufacturing delays, fire, strikes, floods, storms, delay in transportation or any other delay. In the event of delay, the date of delivery shall be extended for a period of time equal to the time lost by reason of the delay.

8.    All goods are sold F.O.B. factory.  Purchaser shall pay all freight, cartage and handling charges from the factory where the machinery and equipment have been manufactured. The risk of loss or damage from time of shipment of the machinery and equipment shall be borne by the Purchaser when the goods are tendered to the carrier. The same shall hold forth whether Seller delivers the goods to a common carrier, an independent contractor or transport service whether provided by Seller or Purchaser.

9.    Unless set forth in this Agreement as mutually agreed upon, all delivery of goods shall be curbside delivery at the point or place designated herein. Seller shall have no responsibility whatsoever to uncrate or set up any goods unless specified by mutual agreement in writing. Purchaser shall have the sole responsibility for all installation of the goods and any permits required and for providing the connection of the goods delivered to any plumbing, electric, gas, vent or other utility connections.  Purchaser shall be responsible for providing adequate access for delivery of equipment.

10.   Pursuant to the notice required under City of Miami Ordinance Number 10533, there are no cash refunds, credit refunds or exchanges of merchandise under this Agreement.

11.  This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns, where permitted by this Agreement. Purchaser expressly agrees that this Agreement is binding upon it and is not subject to cancellation. Purchaser agrees that in the event of cancellation of this Agreement by mutual consent or by notice of right of cancellation embodied in this Agreement, then, and in that event, Purchaser will pay to the Seller any restocking charges, out of pocket costs, and the reasonable value of work done by Seller. This provision shall not give the Purchaser the right of cancellation of this Agreement.

12.   The right, title and interest of Seller, in this Agreement and to the machinery and equipment referred to herein may be assigned without notice and the assignee shall acquire all of the rights and remedies of Seller, but shall not be deemed to have assumed any of its obligations. The Purchaser will not assert against the assignee of Seller, any defenses, counterclaims or setoffs available against the Seller.

13.   If any provision is modified by statute or declared invalid, the remaining provisions shall nevertheless continue in full force and effect. The Purchaser and Seller agree that this Agreement shall be construed and governed by the laws of Florida and that venue for any dispute or litigation arising out of this Agreement shall be in Miami-Dade County, Florida. The Parties agree that any signatures or initials communicated electronically or by facsimile machine and any facsimile or photocopy or electronic copy of this Agreement including counterparts shall be Valid and Binding.

14. THE ONLY WARRANTIES, IF ANY APPLYING TO THIS EQUIPMENT ARE THOSE GIVEN BY THE MANUFACTURER, AND ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THE SELLER HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NEITHER ASSUMES NOR AUTHORIZES ANY EMPLOYEE, AGENT OR OTHER PERSONS TO ASSUME FOR IT ANY LIABILITY IN CONNECTION WITH THE SALE OF THIS EQUIPMENT. PURCHASER SHALL NOT BE ENTITLED TO RECOVER FROM THE SELLER ANY DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES TO PROPERY, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, DAMAGES FOR LOSS OF TIME, LOSS OF PROFIT, OR LOSS OF INCOME. PURCHASER HEREBY WAIVES ALL RIGHTS OF REFUSAL AND RETURN OF GOODS. BUYER ACKNOWLEDGES THAT HE IS NOT RELYING ON SELLER’S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH WOULD EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. 

          Any description of the goods is for the sole purpose of identifying them and shall not be deemed to create an express warranty that the goods shall conform to any such description; any sample or model is for illustrative purpose only and shall not be deemed to create an express warranty that the goods shall conform to the sample model; and no affirmation or promise, or description, or sample or model shall be deemed part of the basis of the bargain.

15.   If Purchaser is trading-in equipment as part of this sale, Purchaser warrants and represents that Purchaser has good title, free and clear of all liens and encumbrances and further Purchaser agrees to indemnify, defend, and hold harmless Seller from all costs or claims whatsoever arising out of the trade-in equipment.

16.    PARTS WARRANTY: (a) New equipment – one (1) year parts replacement; (b) Rebuilt equipment – six (6) months parts replacement; (c) Used equipment: Sold in “AS IS” condition with no warranty. As to (a) and (b) above the parts hereunder shall be provided at no charge except for padding, belts, hoses and other expendables, however, Purchaser shall be responsible for all freight costs incident thereto. Any improper installation or misuse of the equipment shall void this parts warranty. No labor warranty is included.

  

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