GENERAL TERMS AND CONDITIONS
THIS AGREEMENT (the “Agreement”) sets forth the terms and conditions governing all equipment (“Equipment”) sales and leases between H-M Company (“HMC”), and customers who purchase or lease such equipment from HMC (“Customer”). THE TERMS AND CONDITIONS OF THIS AGREEMENT SHALL AUTOMATICALLY BE DEEMED INCORPORATED INTO EACH PURCHASE ORDER AND OTHER DOCUMENT RELATED TO THE SALE OR LEASE OF EQUIPMENT BETWEEN HMC AND CUSTOMER, AS IF CUSTOMER HAD SIGNED THIS AGREEMENT. HMC’s supply and delivery of any Equipment or provision of services related thereto shall be strictly conditioned upon Customer’s compliance with this Agreement. For good and valuable consideration, HMC and Customer agree as follows:
- General Terms; Precedence. Customer’s agreement to and compliance with this Agreement is a material condition of HMC providing Equipment or services to Customer, and shall be deemed specifically bargained for. The terms and conditions of this Agreement shall automatically be fully incorporated into each quotation, purchase order, bid submission, requests for proposals, agreement, and any other purchasing, leasing, or financing document between HMC and Customer or otherwise concerning the Equipment or services (collectively, and as applicable, “Contract Documents”) as if fully restated therein. In the event of a conflict or inconsistency between the provisions of this Agreement and any Contract Documents, the provisions of this Agreement shall supersede and govern. No terms or conditions in any of Customer’s purchase orders, requests for proposals, or other purchasing document unilaterally prepared by Customer will be binding on HMC. Without limiting the foregoing, HMC will not be bound by any non-competition, non-solicitation, exclusivity, or other restrictive covenant, or any “most-favored-nations” or “pay-when-paid” clauses, contained in any Contract Document or any of Customer’s documents, specifications, or terms and conditions.
- Fees and Expenses. Customer shall pay HMC the purchase price, installments, lease payments, and other fees and charges for Equipment and Services set forth in the applicable Contract Documents (collectively and as applicable, the “Fees”). All Fees and any other quoted prices shall be in U.S. dollars, and are and shall be exclusive of and in addition to any and all sales value-added, excise, personal property, or other similar taxes and fees, which are the responsibility of Customer. Unless otherwise set forth in the applicable Contract Documents, Customer shall pay all Fee invoices in full without set-off or deduction within thirty (30) days of receipt of the Fee invoice or the Equipment, whichever occurs first. No retainage is permitted. Customer’s obligation to pay the Fees is absolute and shall not be subject to withholding for any reason or contingent upon receipt by Customer of any amounts from any person or entity. HMC’s acceptance or deposit of any Fees paid by Customer shall not constitute a waiver of any provision hereof, and no accord and satisfaction or paid-in-full language will have any force or effect on HMC or Customers obligations to HMC. All Fees received by HMC shall be applied in the following order: (a) first, to satisfy all court costs and reasonable attorney fees permitted herein; (b) second, to satisfy all interest and other fees permitted herein; and (c) finally, to satisfy the principal amount of all remaining Fees.
- Default; Enforcement. If Customer fails to pay any Fees to HMC when due:
- Such Fees shall immediately, automatically, and without notice, begin to accrue interest at a rate equal to the lesser of (i) fifteen percent (15%) per annum; or (ii) the highest legal rate allowable by applicable law; and
- HMC may assess a late fee (not a penalty) to mitigate its administrative costs equal to five percent (5%) of the outstanding balance, which shall be deemed immediately due and owing and subject to interest accrual; and
- Customer shall promptly pay on demand all costs and reasonable attorney fees incurred by HMC in connection with the enforcement of this Agreement and any related litigation, mediation, or arbitration costs (as applicable) incurred by HMC in connection therewith; and
- Exercise any rights available to a secured creditor under applicable law, including without limitation, repossessing the Equipment and selling the same to satisfy Customer’s payment obligations; and
- If Customer leases the Equipment from HMC, Customer shall be deemed in default of such lease agreement and HMC may, subject to applicable laws:
- Terminate the lease agreement;
- Repossess the Equipment; and
- Accelerate all payments due to HMC under the lease agreement, which shall become immediately due and payable.
The foregoing remedies shall be cumulative and shall not be in lieu of any other remedy available to HMC at law or in equity. HMC may elect, at its discretion, to exercise some, none, or all of such remedies.
- Warranties; Exclusive Remedy.
- All Equipment is provided with any applicable manufacturer’s warranty, and subject to all terms and conditions of such warranty. If Customer experiences any defects, malfunctions, or other issues, Customer must look solely to the applicable manufacturer for reimbursement or correction. HMC’s sole liability for such Equipment is limited to physical damage to the Equipment caused by HMC and HMC’s employees and agents. Customer’s exclusive remedy for any such damage caused by HMC shall, at HMC’s election, be limited to repair or replacement of the damaged component or item, or a refund equal to the replacement value of such damaged component or item, which shall be determined in HMC’s sole discretion. Any such claim must be submitted in writing to HMC within ninety (90) days after delivery of the Equipment to Customer or Customer otherwise obtaining possession of the Equipment, if earlier. Failure to submit such a claim within such time will be deemed a waiver of such claim. In no event will Customer be entitled to return the Equipment or receive a refund therefore unless expressly approved in writing by HMC, which approval may be withheld for any or no reason in HMC’s absolute discretion. All sales are final.
- EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, HMC DOES NOT MAKE ANY OTHER WARRANTIES OR REPRESENTATIONS REGARDING THE EQUIPMENT OR ANY SERVICE RELATED THERETO, AND HMC HEREBY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4, ALL EQUIPMENT AND SERVICES ARE PROVIDED TO CUSTOMER ON AN AS-IS, WHERE-IS, AND WITH-ALL-FAULTS BASIS.
- Any alleged additional warranty or modification of the warranties and limitations set forth in this Agreement must be expressly set forth in writing which must specifically reference HMC’s election to modify or amend this Section of this Agreement, and must be signed by the President of HMC, to be enforceable. No oral or other written statements to, from, or between any HMC employee or agent and any Customer employee or agent, whether in person, over the telephone, email communication, or in any Contract Documents or otherwise, may modify, waive, or expand the foregoing warranties and limitations contained in this Section.
- Customer is solely responsible for complying with all operating manuals and guides, manufacturer’s warranty requirements, and other commonly accepted safety practices with respect to the Equipment. Customer shall comply with all laws, rules, and regulations when using the Equipment.
- The terms of this Section shall survive termination or expiration of any Contract Documents and payment of all outstanding Fees, forever.
- Ownership; Leased Equipment; Covenants.
- If Customer purchases the Equipment, Customer will obtain title to the Equipment upon delivery or possession thereof, whichever occurs first.
- If Customer leases or enters into a “lease-to-own” arrangement with HMC for the Equipment (collectively, “Leased Equipment”), title to the Leased Equipment shall remain solely with HMC until all Fees owed to HMC under the applicable Contract Documents (“Obligations”) are timely paid in full. Additionally, until Customer pays all Obligations, Customer shall:
- Keep the Leased Equipment in good, working order (reasonable wear and tear excepted), free and clear of all liens, claims, encumbrances, and options of any kind; and
- Keep the Leased Equipment insured at all times in an amount to sufficient to cover the full replacement value thereof, but in no event less than an amount necessary to satisfy the Obligations at any time; and
- Not sell, transfer, or sublease the Leased Equipment to any person or entity, nor relocate the Leased Equipment from the location to which HMC delivered such Leased Equipment, without the prior written consent of HMC, which may be withheld in HMC’s sole and absolute discretion.
- Security Interest; Financing Statement. Customer grants to HMC, to secure the payment and performance of all Fees, a first priority lien and security interest in the Equipment. The foregoing grant of security shall be irrevocable and remain in full force and effect for so long as any Fees to HMC remain outstanding. Customer hereby irrevocably authorizes HMC to file in any filing office in any Uniform Commercial Code or other jurisdiction any initial financing statements and amendments thereto that describe the Equipment and the security interest provided herein, which includes without limitation, the authority to file a UCC-1 Financing Statement. The Customer further agrees, at the request and option of HMC, to take any and all other actions HMC may determine to be necessary or useful for the attachment and perfection of, and the ability of HMC to enforce, HMC’s security interest in any and all of the Equipment.
- Confidentiality. All pricing and Contract Documents are Confidential Information. Customer will not directly or indirectly disclose such Confidential Information to any person or entity, and shall use the Confidential Information only for its own internal business purposes.
- Limitation of Liability. Notwithstanding anything herein, in the Contract Documents, or any other document prepared by Customer to the contrary, to the maximum extent permitted by applicable law:
- In no event shall HMC be liable to Customer or any other person or entity for special, exemplary, indirect, incidental, consequential, or punitive damages, including without limitation, lost profits, loss of data, or loss of business opportunity, arising out of or in connection with this Agreement, the Contract Documents, the Equipment, the Leased Equipment, or any services related thereto, regardless of whether or not HMC has been advised of the possibility of such damages.
- Except as expressly provided in Section 4, above, in no event will HMC be liable to Customer or any other person or entity for any loss or damage, including damage to personal property or real property and personal injury or death, in any way caused by or related to the Equipment or the Leased Equipment, including the use or malfunction thereof. Without limiting the foregoing, Customer, on behalf of itself and its insurers, hereby waives the right to subrogate any insurance claim or coverage related to HMC, the Equipment, related services, this Agreement, or the Contract Documents, which is paid or payable in relation to any such damages, injury, or death.
- WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF HMC TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, THE CONTRACT DOCUMENTS, THE EQUIPMENT, OR ANY SERVICES RELATED THERETO, SHALL BE LIMITED TO THE AMOUNT OF ALL FEES ACTUALLY PAID BY CUSTOMER TO HMC FOR THE INDIVIDUAL UNIT OF EQUIPMENT WHICH CAUSED OR GAVE RISE TO SUCH CLAIM.
- The foregoing limitations of liability shall survive termination or expiration of any Contract Documents, delivery or acceptance of the Equipment, and payment of all outstanding Fees, forever.
- Independent Contractors. HMC is an independent contractor of Customer. Nothing contained herein shall be deemed to create any partnership, joint venture, or relationship of principal and agent between HMC and Customer or any of their employees, contractors, affiliates, or subsidiaries. HMC shall have no liability for any action or inaction of Customer or Customer’s employees, contractors, and customers.
- Assignment; Subcontracting. HMC shall be entitled to assign any of its rights, obligations, or responsibilities under this Agreement and any Contract Document to any third-party without the consent of or notice to the Customer. Customer shall not assign any of its rights or obligations under this Agreement, and any such purported assignment shall be void and of no force or effect.
- Integration; Survival; Enforceability. This Agreement, and the Contract Documents (to the extent not inconsistent or in conflict with this Agreement), collectively constitute the full and complete understanding of HMC and Customer with respect to the Equipment and the subject matter described herein, and supersedes all prior and contemporaneous written or oral agreements concerning the same. All Sections necessary to interpret the respective rights and obligations of HMC and Customer hereunder, shall survive the expiration or termination of any Contract Documents and delivery of and payment for the Equipment. For avoidance of doubt, the limitations of liability and disclaimer of warranties contained herein shall survive such events. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof or the Contract Documents, and this Agreement and such Contract Documents shall be construed in all respects as if such invalid or unenforceable provision were omitted or, if permitted, enforceable to the maximum permissible extent. This Agreement shall not be modified or amended except in a writing signed by the President of HMC which specifically references this Agreement and HMC’s intent to modify or amend the same. Notwithstanding the foregoing, HMC may modify or update this Agreement at any time by posting such modification or update to its website; provided, that such modified terms shall be effective only for Contract Documents entered into after the date such modified terms are posted.
- Waivers. The failure of HMC to take action as a result of a breach of this Agreement or any Contract Document shall not constitute a waiver of the particular breach involved nor a waiver of HMC’s right to enforce any or all provisions of this Agreement or the Contract Documents. Any such waiver by HMC must be set forth in writing and signed by an authorized representative of HMC. Nor oral or other form of waiver will be permitted. Any such waiver made in accordance with this Section shall not operate as a continual waiver or waive of any future event or breach.
- Governing Law; Attorney Fees. Notwithstanding anything to the contrary in the Contract Documents, this Agreement and the Contract Documents shall be interpreted and construed in accordance with the laws and procedures of the United States of America, and specifically the State of Ohio, without giving effect to the principles of conflicts of law of those jurisdictions. HMC and Customer hereby submit exclusively to the personal jurisdiction and venue of the state and federal courts of Ohio, sitting in Hamilton County, in any action or suit to enforce any right or remedy under this Agreement or the Contract Documents or to interpret any provision of this Agreement or the Contract Documents. Customer hereby acknowledges, represents, and warrants that HMC is principally located in Hamilton County, Ohio, and Customer’s interactions with and engagement of HMC as an Equipment supplier constitute personal, purposeful, and voluntarily availment of and sufficiently minimum contacts with Hamilton County, Ohio, to warrant such exclusive jurisdiction and venue. Customer waives any claim that Hamilton County, Ohio, is an improper or inconvenient forum. Customer shall pay all of HMC’s court, mediation, and arbitration (as applicable) costs, and all reasonable attorney fees, incurred in connection with HMC’s enforcement of the terms of this Agreement and any other Contract Documents.
- Force Majeure. No failure or omission by HMC to carry out or observe any of the stipulations, conditions, or obligations to be performed under this Agreement or any Contract Document shall give rise to any claim against HMC or be deemed to be a breach of this Agreement or an Contract Document if such failure or omission arises from any circumstances beyond the reasonable control of HMC, including acts of God, war, civil unrest, governmental shutdowns, pandemics, epidemics, governmental emergencies, strikes, governmental restrictions or sanctions, or natural disasters.