Terms and Conditions
Ely Enterprises, Inc.’s Terms and Conditions apply to all purchases made by Buyer of all products distributed, manufactured, or
reconditioned by Ely Enterprises, Inc. and its subsidiaries (the “Seller”), and unless expressly modified in writing, are deemed
applicable to all sales and purchases to which Seller is a party. All other terms not expressly agreed to in writing are hereby
rejected.
OFFER. Seller’s Terms and Conditions constitute an immediately acceptable offer to sell goods to Buyer. Seller’s offer expressly
limits acceptance to the terms of Seller’s offer. Buyer may accept Seller’s offer and be bound by Seller’s Terms and Conditions in
any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.
Any terms that are proposed in Buyer’s acceptance (whether it be in a printed purchase order or in any other writing or
otherwise) that delete, add to, or which could in anyway be construed as varying from or conflicting with the Terms and
Conditions herein, are hereby objected to and rejected. Such proposed terms and/or conditions shall be void and the Terms
and Conditions hereof shall constitute the complete and exclusive statement of the Terms and Conditions of the contract
between Seller and Buyer and may hereafter be modified only by a written instrument executed by an authorized
representative of Seller.
If Seller’s Terms and Conditions have been issued by Seller in response to an offer made by Buyer, and if any of Seller’s Terms
and Conditions are additional to or different from Buyer’s terms and conditions, then the issuance of Seller’s Terms and
Conditions shall constitute an acceptance of Buyer’s offer, subject to the express condition precedent that Buyer assent to such
additional or different terms and acknowledge that Seller’s Terms and Condition constitute the entire agreement between
Seller and Buyer with respect to the subject matter of Buyer’s offer. Buyer shall be deemed to have acknowledged and
assented to Seller’s Terms and Conditions unless Buyer notifies Seller in writing within ten (10) days of placing an order, which
is subject to Seller’s Terms and Conditions. Buyer agrees that no contract shall exist between Seller and Buyer except as
expressly set forth herein.
PRICES: All prices exclude sales, use, occupation, license, excise and other taxes in respect of manufacture, sale or delivery and
are firm for a period of 30 days from the date of the Proposal, provided shipment will be accepted within eight months of the
date of the Proposal. Price will be adjusted to prices current at time of shipment on all shipments made after eight months from
date of receipt of purchase order. Prices do not include any costs, expenses, or charges that may become required for
installation of any equipment as a result of matters unknown or undisclosed to the Company at the time of the Proposal,
including specifically, but without limitation, matters concealed by floors, walls, and/or ceilings of the facility where the
equipment is to be installed, all of which costs and expenses shall be in addition to the prices quoted in the Proposal. Any
alteration or deviation from the specification involving extra costs will be executed only upon a written change order and will
be invoiced at the price negotiated and incorporated within the change order.
DELIVERY: Except as otherwise specified in the proposal, delivery will be F.O.B. point of shipment. Time is not of the essence
with respect to delivery dates and delivery dates are subject to reasonable adjustment. The acceptance of a shipment by Buyer
shall constitute proper delivery. Buyer shall in no event be liable for any alleged damages, expenses, or losses for any such
delay.
Unless otherwise specified in writing authorized by Seller, all charges, expenses or taxes associated with the delivery, including,
but not limited to shipping and handling, charges for special delivery services, and for refused deliveries shall be paid by the
Buyer; unless Buyer’s refusal is for damaged goods. Freight charges for refused shipments will be charged to Buyer.
Customer is responsible for providing electrical power to equipment. All electrical work and wiring, including wiring switches,
starters, and disconnects must be connected and running to enable making necessary adjustments. Additional trips to final wire
or adjust machines will be invoiced at standard rates, payable immediately.
Customer is responsible for receiving shipments, providing a safe storage, and providing a clean, clear access to the work area.
RISK OF LOSS AND DAMAGE/TRANSFER OF TITLE: The risk of loss or damaged goods passes to Buyer upon shipment of goods
as specified herein. Title to goods shall pass to Buyer upon receipt of valid payment by Seller.
WARRANTY: All new machinery quoted on this Proposal is subject to the standard guaranty of the manufacturer thereof. Seller
shall not be liable for defects or short-comings, and no obligation with regard to suitability, capability, performance or
compliance with buyers’ specifications is undertaken or is to be implied. Seller’s warranty does not cover, and Seller EXPRESSLY
DISCLAIMS any defect, failure, deficiency or error which is: (a) not reported to Seller within the applicable warranty period and
returned to Seller within 30-days of notification of Buyer’s warranty claim; (b) due to product modification, abuse, misuse,
improper storage, unauthorized repair or maintenance or abnormal conditions of temperature, humidity, dirt or corrosive
matter; (c) due to the application of the product, either intentional or otherwise, in an improper manner; (d) due to normal
wear and tear of the product or any part(s) thereof, (e) due to improper usage, operation in excess of rated capacity, and/or
when any safety devices have been circumvented, removed or rendered inoperable. No claim will be allowed for any expenses
incurred in repairing any apparatus under warranty without our consent.
EXCLUSION OF WARRANTIES AND LIMITATION OF SELLER’S LIABILITY: Except as set forth herein, THERE ARE NO WARRANTIES
MADE BY SELLER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY,
THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTIES AGAINST DEFECTS IN DESIGN,
MATERIALS AND WORKMANSHIP, INFRINGEMENT OR OTHERWISE WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS
THAT ARE THE SUBJECT TO THIS OFFER AND/OR AGREEMENT. BUYER WAIVES ALL OTHER CLAIMS AGAINST SELLER.
SELLER’S TOTAL LIABILITY RELATED TO ANY PRODUCT IS LIMITED TO THE REPAIR OR REPLACEMENT OF SUCH PRODUCT AND IN
NO EVENT SHALL EXCEED THE PURCHASE PRICE OF SUCH PRODUCT PAID TO SELLER BY BUYER. SELLER SHALL NOT BE LIABLE
FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THE PURCHASE, STORAGE OR USE OF THE PRODUCT, INCLUDING, BUT NOT LIMITED TO: (A) DAMAGES FOR LOSS OF USE,
INCOME OR PROFIT; (B) LOSSES SUSTAINED AS A RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSONS; AND/OR (C)
DAMAGES TO PROPERTY, OTHER THAN THE PRODUCT.
PROGRESS PAYMENTS: Failure to remit timely deposits or progress payments may result in manufacturing and shipping delays.
Buyer acknowledges that failure to remit the final payment shall result in Seller’s ability to waive all future warranty, service
and parts considerations. Equipment or materials will be invoiced as of shipment regardless of whether order is shipped in
whole or in part.
TITLE AND LIEN RIGHTS: The equipment shall remain personal property, regardless of how affixed to any realty or structure.
Title thereto shall remain in Seller until the price (including and notes therefor) has been fully paid in cash.
ACCEPTANCE: Unless otherwise expressly stated herein, or unless modified or withdrawn by Seller prior to acceptance, this
proposal shall expire 30 days after its date. There are no understandings or agreements outside the written proposal. All
previous communications, either oral or written, with reference to the subject matter of this proposal, are hereby superseded.
An order based upon this offer subject to these Terms and Condition, I, when duly accepted by Buyer, shall constitute the
agreement between the parties hereto, and no modifications shall be binding upon the parties, or either of them, unless such
modifications shall be in writing, duly accepted by the Buyer and approved by an executive officer of other duly authorized
representative of Seller.
Unless expressly stated in writing, all used un-reconditioned equipment quoted or sold, is offered and sold “As Is, Where Is,
Subject to Prior Sale”. It is the Buyer’s responsibility to insure the condition of the machine and the adequacy and operability of
any and all safety devices required under current safety standards.
All claims of any nature must made within ten (10) days of receipt of goods. Goods may not be returned without written
authorization. A restocking fee will be charged.
COSTS AND EXPENSES: Buyer agrees to pay Seller all costs and expenses, including reasonable attorney’s fees (including those
on appeal) incurred by Seller in exercising any of its rights and remedies hereunder, including specifically the collection of any
outstanding balance owed to Seller by Buyer.
Credit card payments over $5,000.00 will incur a 3% surcharge.
SERVICE CHARGE: Should the Buyer request the service of an erector or serviceman (except as specifically provided for and
included in the price of such article in the proposal), such service will be rendered at a charge of (see quotation), plus all other
expenses’ incident thereto, including transportation to and from Buyer’s plant and living expenses.
INSURANCE: Customer is responsible for maintaining adequate (Business Personal Property) Insurance Coverage for all
contracted equipment upon shipment.
LIMITATION OF PERIOD FOR ACTION ON CONTRACT: Parties agree, notwithstanding the applicable statute of limitations
prescribed under Ohio law, no action, regardless of form, arising out of any transaction between Buyer and Seller under these
Terms and Conditions may be brought by Buyer more than one year after the delivery of the goods to the Buyer that are
subject of this offer and/or agreement.
VENUE, CHOICE OF LAW: Venue for any legal action, whether in a court of law, equity, or otherwise, arising out of or related to
the offer subject to these Terms and Conditions, the contract between the parties, or the equipment or other items sold by
Seller to Buyer, shall be the Court of Common Pleas for Lorain County, Ohio, or in the Federal District Court for the Northern
District of Ohio, and each of the parties expressly consents to such venue and the subject matter and personal jurisdiction of
such court. The entire relationship between the parties, including specifically, but without limitation, this offer subject to these
Terms and Conditions or any contract based thereof between the parties, and the equipment or other items sold by Seller to
Buyer shall be governed by and construed in accordance with the laws of the State of Ohio.
