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      Bratney Companies
      Conditions of Sale


      The following terms and conditions (“Conditions of Sale”) govern the foregoing equipment proposal (the “Proposal”).  The term “Purchaser” as used herein, shall mean and refer to the customer identified on the Proposal or the party otherwise purchasing products or services from Bratney Equipment Co.  Some equipment manufacturers may have additional terms, conditions, and/or warranties.  These Conditions of Sale, and any applicable manufacturer-specific additional terms, conditions, and/or warranties that may be provided to Purchaser with or following these Conditions of Sale, are hereby incorporated into the Proposal by reference.


      Article 1 - Acceptance of Terms

      The prices and terms quoted on this Proposal are subject to change thirty (30) days from the date on which the Proposal was first issued. Bratney Equipment Co. (the “Company”) agrees to sell to Purchaser, and Purchaser agrees to purchase from Company, the equipment, materials, parts, and/or other products sold hereunder (the “Equipment”) in accordance with the terms of this Proposal. This Proposal is not binding on Company until signed by a duly authorized employee of Company.

      Neither installation nor installation supervision or start-up services are included as part of this Proposal, unless specifically stated otherwise. These services may be furnished at extra cost if ordered by Purchaser and agreed to in writing by Company.

      In the event that installation, installation supervision, and/or start-up services are included in this Proposal, such services are provided subject to both these Conditions of Sale and the Additional Terms and Conditions for Installation and Start-up Services included herein, which are hereby incorporated into the Proposal by reference.

       

      Article 2 – Taxation

      Unless and except to the extent specifically stated otherwise in the Proposal, no taxes are included in the price quoted in this Proposal. All taxes, fees, and charges associated with the Equipment and materials (including, without limitation, sales, use, gross receipts, and similar taxes) are the responsibility of Purchaser and are in addition to the price set forth in the Proposal. Purchaser shall be liable for and shall reimburse Company for all taxes, fees, or charges imposed upon Company relating to any materials or Equipment purchased hereunder, and such amounts shall be payable by Purchaser upon receipt of Company’s invoice for the amount due. If Purchaser claims an exemption to any such taxes, Purchaser shall provide Company with a valid tax exemption certificate in a form acceptable to the appropriate taxing authority. Purchaser bears responsibility for ensuring that any tax exemption certification provided to Company is current, complete, and otherwise valid.

       

      Article 3 - Transportation and delivery

      Shipping dates submitted are based upon the best efforts of Company and the representation of Equipment availability to Company by equipment manufacturers and materials suppliers. Company shall endeavor to deliver the Equipment on or before the stated time for delivery. In any event, Company shall not be responsible for any delay in delivery attributable to war, shortages of labor and/or transportation services and/or materials, labor disputes of any nature, natural disaster and/or extreme weather, fire, floods, or other acts of God or of the public enemy, riots, lockouts, or any other such cause(s) beyond the reasonable control of Company or Purchaser. Company shall incur no penalty or liability for failure to meet a shipping date despite its best efforts, and shall in no event be held responsible for any loss of profits, loss attributable to down time, damages incurred by Purchaser, its customers, or other consequential, special or incidental damages that may result from such delay.

       

      Delivery of the Equipment to a common carrier at F.O.B. point indicated by Proposal, consigned to Purchaser shall be deemed full and complete delivery thereof by Company, and all freight and transportation charges shall be paid by Purchaser. Title to the Equipment shall remain with Company, notwithstanding delivery, until Purchaser pays the full purchase price and complies with all other terms, covenants and conditions herein required to be performed by Purchaser. Prior to passing of full title, Purchaser agrees not to pledge, mortgage, encumber, assign or transfer any interest which Purchaser may have in the Equipment (including rights arising by operation of law) without the written consent of Company.

       

      From and after the time of delivery of the Equipment by Company to the carrier for shipment to Purchaser, any damage to the Equipment or its destruction, delay, or loss, in whole or in part, attributable to war, shortages of labor, transportation services and/or materials, labor disputes of any nature, natural disaster and/or extreme weather, fire, floods, or other acts of God, or of the public enemy, riots, lockouts, or any other such cause(s) beyond the reasonable control of Company shall be the sole responsibility of Purchaser.

       

      Article 4 – Cancellation; Termination

      Equipment orders shall not be cancelled by Purchaser, and Equipment cannot be returned, except upon the express prior written consent of Company. In any such event, Purchaser agrees to pay reasonable compensation for Company’s loss caused by such cancellation, including, without limitation, cancellation charges or payment of a minimum restocking charge of fifteen percent (15%) of F.O.B. price, at Company’s option. Non-standard items may not be cancelled for any reason and are not returnable under any conditions.

       

      Work and/or Services (as defined below), if any, may not be cancelled or terminated without Company’s express prior written consent. In the event of any such cancellation or termination, Purchaser shall pay Company for all work performed through the termination date plus any costs for demobilization, termination of commitments, and other typical termination costs.

       

      All amounts due under this Article 4 shall be paid to Company by Purchaser net fifteen (15) days from date of invoice.

       

      Article 5 – Warranty

      1. Equipment Warranty: Company warrants to Purchaser that all Equipment and materials furnished under this Proposal will be new, unless otherwise specified. Notwithstanding anything else in the Proposal, Company’s warranties with respect to all Equipment and materials furnished shall be limited to the manufacturer’s warranties obtainable from the applicable manufacturer(s), subject to the terms and conditions thereof. Company shall collect all applicable written manufacturer warranties and Equipment manuals and deliver them to Purchaser. To the extent permitted, Company will assign such warranties to Purchaser. To the extent any such warranties are not assignable, Company will use commercially reasonable efforts to enforce such warranties on Purchaser’s behalf. The pass-through of the applicable manufacturer warranties for Equipment and materials provide the sole and exclusive warranties for Equipment and materials furnished by Company. Such manufacturer warranties are in lieu of all other warranties, express or implied.

      2. Workmanship Warranty: If any Work and/or Services (as defined herein) are specified in the Proposal and provided by Company, Company warrants that such Work and/or Services, if any, will be of good quality and free of improper workmanship for a period of ninety (90) days from completion of the Work and/or Services (the “Workmanship Warranty”). Purchaser shall immediately notify Company in writing of any claim of defective workmanship. If, in Company’s sole discretion, Company determines that a workmanship defect exists, then at Company’s sole option, Company will replace, repair or correct any defective Work and/or Services performed under this Proposal. The foregoing Workmanship Warranty is the sole and exclusive warranty for the Work and/or Services and is in lieu of all other warranties, express or implied. The Workmanship Warranty excludes remedy for damage or defect caused by abuse, modifications not executed by Company, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage.

      3. Warranty Disclaimers: ALL WARRANTIES, EXPRESS OR IMPLIED, OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE ARE EXPRESSLY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT. The applicable Equipment manufacturer’s warranty may have additional exclusions and disclaimers.

       

      Article 6 – Indemnification

      Purchaser acknowledges that it has the sole responsibility to use, operate and maintain all Equipment (and Work, if any) in a secure and safe manner, and in accordance with good safety practices. To the extent permitted by law, Purchaser agrees to hold Company harmless and to indemnify Company from any liability, damage or loss, whether to person or property, attributable to the negligent acts or omissions of Purchaser, Purchaser’s use of the Equipment and/or Work, or on account of Purchaser’s alteration of the Equipment, Work, and/or any parts, structures, components, or labels thereof.

       

      Article 7 - Equipment proprietary in nature

      Purchaser agrees that all goods sold by Company to Purchaser are considered proprietary in design, engineering and performance. The Purchaser shall keep confidential and not disclose to any third party without Company and equipment manufacturer’s prior written consent, any information provided by Company or any equipment manufacturer as a result of this Proposal, including but not limited to: contractual documents, quotation, drawings, data, technical, strategic or commercial information. Any attempt to copy, reverse engineer, manufacture, or otherwise use the Equipment, or any of its components, as a manufacturing reference is strictly prohibited.

       

      Article 8 – Mutual Waiver of Consequential Damages

      To the fullest extent permitted by law, and notwithstanding any other provision to the contrary, Purchaser waives all claims against Company for any special, incidental, indirect, or consequential damages of any nature arising out of or relating to this Proposal, Equipment, Work and/or Services from any cause or causes, including, without limitation, any such damages caused by breach of contract, warranty express or implied, negligence, professional errors or omissions, indemnity obligations or strict liability of Company.

       

      Article 9 – Limitation of Liability

      If, for any reason, Company is found liable to Purchaser, whether under any contract, warranty, negligence, professional errors or omissions, strict liability, or other legal or equitable theory, in no event shall the liability of the Company exceed the cost of correcting defects in the Equipment existing at time of purchase or the cost to remedy defects in Work and/or Services pursuant to the terms and conditions of the Workmanship Warranty set forth herein.

       

      Article 10 – Miscellaneous

      1. Entire Agreement. The terms and conditions contained in these Conditions of Sale and the Proposal (together with the Additional Terms and Conditions for Installation and Start-up Services included herein, if services are specified in the Proposal) form the entire Agreement between the parties. Company’s acceptance of any purchase order of Purchaser is expressly made conditional on the Purchaser’s assent to the terms and conditions in this writing. The Purchaser’s assent to these terms and conditions shall be presumed from Purchaser’s acceptance of any part of the Equipment and/or Work. Any prior proposals, negotiations or representations, whether oral or in writing, regarding the subject matter of this transaction are superseded by this Agreement. The terms and conditions set forth in these Conditions of Sale shall supersede terms from any other source associated with this transaction, to the extent that any inconsistency exists between them.

      2. Headings; Severability. The headings of the sections and subsections of this Proposal are for the convenience of the parties and shall not be used to interpret, construe, or enforce the terms of the Proposal. In the event that a court determines that any portion of this Proposal is voidable, invalid, or unenforceable, such portion shall be severed from the Proposal, and the remaining portions of the Proposal shall remain in full force and effect, and shall be enforceable as if they were a separate agreement.

      3. Governing Law; Jurisdiction and Venue; Waiver of Jury Trial. The validity, interpretation, and performance of this Proposal or use of any Equipment, Work or Services supplied by or purchased through or from Company shall be construed in accordance with the laws of the State of Iowa, without giving effect to the choice of law rules thereof. Any controversy or dispute arising from or related to this Proposal or use of any Equipment, Work, and/or Services supplied by or purchased through or from Company shall be exclusively determined in the Iowa District Court sitting in Polk County, Iowa. The parties irrevocably consent to the sole and exclusive jurisdiction and venue in the Iowa District Court sitting in Polk County, Iowa for the purpose of litigating any dispute that arises out of or relates to this Proposal or use of any Equipment, Work or Services supplied by or purchased through or from Company. The parties to this Proposal hereby irrevocably waive jury trial for all claims arising out of or related to this Proposal or any Equipment, Work, or Services supplied by or purchased through or from Company.

      4. Waiver and Modification. The failure of either party to this Proposal to insist upon the performance of any term(s) shall not be a waiver of the party’s rights to performance of the term(s), or to specific performance of the term(s) in the future. This Proposal may be modified only as specifically agreed in writing by both Company and Purchaser.

       

      IMPORTANT: Some equipment manufacturers may have additional terms, conditions, and/or warranties. Please carefully review all additional manufacturer-specific information.

       

       

      ADDITIONAL TERMS AND CONDITIONS FOR INSTALLATION AND START-UP SERVICES

       

      In addition to the foregoing Conditions of Sale, the following additional terms and conditions shall also apply to all installation and/or start-up services, if any, included in the Proposal:

       

      1. Installation Work; Start-up Services: Company agrees to furnish the labor and materials necessary for installation of the Equipment (the “Work”) and/or to perform the start-up services or other services (the “Services”) expressly stated in the Proposal. Company will use its best efforts to complete the Work and/or Services according to the plans and specifications stated in the Proposal.

      2. Change Orders: Company shall not be required to perform any additions or changes to the Work and/or Services unless agreed to in a written change order signed by both Company and Purchaser which shall include equitable adjustments to the schedule and/or price of the Work and/or Services.

      3. Schedule: Company will complete endeavor to complete the Work and/or Services in a timely manner or according to the schedule agreed by the parties in writing. Such schedule is subject to adjustment for delays in progress due in whole or in part to changes ordered in the Work and/or Services by Purchaser, or by labor disputes, fire or other peril and/or loss, unusual delay in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties, sabotage, or any other cause beyond Company’s reasonable control.
      4. Insurance Requirements: Company shall procure, pay for, and maintain in full force and effect, insurance, including commercial general liability, business automobile liability, and workers’ compensation coverage, at levels sufficient for its operations under the Proposal. Purchaser shall procure and maintain, at its sole expense, “All Risk” property insurance to protect Purchaser’s property, plant, and equipment, and Company’s property thereon for the duration of the Work and/or Services, and to cover its liabilities under the Proposal. Purchaser’s insurance policies must name Company as an additional insured. Purchaser and Company waive all rights against each other for damages caused by perils covered by insurance under this section except such rights as they may have to the proceeds of such insurance held by either party as trustee. Upon written request, each party will provide the other party with a Certificate of Insurance evidencing compliance with its insurance requirements herein.

      5. Safety: Company will perform the Work and/or Services in a safe and reasonable manner, and take all reasonable steps to ensure the safety of persons and protect property in Company’s work area. Upon Purchaser’s request, Company’s employees and representatives will display visible identification furnished by Purchaser while on Purchaser’s property.

      6. Subcontracting: Company may perform the Work and/or Services through its own personnel, or it may subcontract the Work and/or Services, or portions thereof, to its affiliate, The Ken Bratney Co., or to other subcontractors of Company’s choosing. Company shall be responsible for managing the performance of the Work and/or Services, whether performed by Company, The Ken Bratney Co. or Company’s other subcontractors. No contractual relationship shall exist between Purchaser and The Ken Bratney Co. or between Purchaser and Company’s other subcontractors.