TERMS AND CONDITIONS FOR ONLINE SALE FOR PURCHASE OF GOODS
1. Agreement. These Terms and Conditions of Sale (“Terms”) govern the online purchase of parts, supplies and other products (“Goods”) by any individual or entity (“Customer”) from Butler Machinery Company (“Butler”). Customer’s placement of an order with Butler through the completion of an online transaction constitutes Customer’s acceptance of these Terms exactly as written.
2. Order Acceptance, Cancellation and Returns. Customer’s online order is an offer to buy, under and in accordance with these Terms, all Goods listed in the order. Butler may choose not to accept any orders in its sole discretion. After Butler receives Customer’s order, Customer will receive an email that confirms receipt of the order and includes details relating to the order (the “Order Confirmation”). Acceptance of an order will not take place unless and until Customer has received the Order Confirmation. Upon issuance of the Order Confirmation, these terms and conditions will be the contract of sale for the order. Customer may not cancel an order once Customer has been sent the Order Confirmation.
3. Pricing. The prices posted online for Goods are subject to change without notice. The price charged for Goods will be the price reasonably determined by Butler to be in effect at the time the order is placed and will be set forth in the Order Confirmation. Price increases will only apply to orders placed after such increases are posted online. Posted prices do not include taxes or other governmental fees or charges for shipping. All such taxes and shipping charges will be added to your merchandise total and will be itemized in the Order Confirmation. Butler is not responsible for pricing, typographical or other errors on the online site and Butler reserves the right to cancel any orders arising from such errors.
4. Payment. Customers can pay for an order through an open credit account with Butler or CAT, subject to their applicable terms. Otherwise, upon receipt of the order, Butler will confirm to its reasonable satisfaction that Customer has the credit available to pay for the order and a hold will be placed against the listed credit card in the amount of the order before issuance of the Order Confirmation. Butler will receive full payment at the time shipment by collection of the funds through the applicable credit card. All credit card processing is performed by a third-party processor. Customer acknowledges that the credit card and related financial information Customer provides in connection with an order will be provided to such third-party processor, and Customer expressly authorizes and grants Butler permission to share such information, which may include, but not be limited to, credit card and any other personal information Customer provides in connection with the order. Customer represents and warrants that (i) the credit card or payment information supplied in connection with the order is true, correct and complete, (ii) Customer is duly authorized to use such credit card or other authorized form of payment, (iii) charges incurred by Customer will be honored by Customer’s credit card company, and (iv) Customer will pay the amount set forth in the Order Confirmation, as well as all applicable Taxes and shipping charges.
5. Taxes. Customer will be required to pay Butler any taxes that Butler is required to collect with respect to the order including, but not limited to, sales, use, value added, personal property and similar taxes (“Taxes”). For any Taxes from which Customer claims exemption, Customer shall provide Butler with properly completed exemption certificates and any documentation needed to validate the exemption. If Customer fails to provide an appropriate exemption certificate and supporting documentation, as determined by Butler, Customer will remain liable for all such Taxes and will indemnify Butler for any liability related to the same.
6. Delivery Date. Customer acknowledges that estimated delivery dates for Goods are estimates only. The actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Butler will use commercially reasonable efforts to meet estimated delivery dates and shall keep Customer advised of the status of its delivery.
7. Returns. Some Goods may be returnable for a refund, less shipping costs, in accordance with Butler’s then current return policy.
8. Risk of Loss/Delivery. The transfer of title and ownership of Goods shall occur, and Butler’s responsibility and liability for Goods ceases, upon delivery of the Goods to Customer or to a carrier for shipment to Customer. Customer shall bear the risk of loss at such point, including, but not limited to, any claims for damages, delays or shortages occurring thereafter, all of which shall be made by the Customer directly to the carrier.
9. Warranties for Goods and Services. Customer acknowledges that (i) Butler is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, Butler will pass through to Customer the manufacturer’s warranty to the extent permitted by the terms of such warranty; and (iii) the manufacturer’s warranty will be subject to all conditions, exclusions, and exclusive remedies set forth therein. UNLESS OTHERWISE SET FORTH IN A WRITING EXECUTED BY BUTLER, BUTLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO ANY GOODS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW, COURSE OF DEALING, USAGE OR TRADE, OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED BY BUTLER AND WAIVED BY CUSTOMER.
10. LIABILITY LIMITATION. CUSTOMER AGREES THAT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AGAINST BUTLER SHALL BE AS CONTAINED IN ANY EXPRESS WRITTEN WARRANTY ISSUED BY BUTLER, IF ANY. IN NO EVENT SHALL BUTLER, WHETHER BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY, BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OF PROPERTY OR GOODS, DOWNTIME, LOSS OF THIRD PARTY CONTRACTS OR LOST CROP OR OTHER PRODUCTION, REGARDLESS OF WHETHER BUTLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, BUTLER’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY) FOR DAMAGES OR LOSS, SHALL IN NO EVENT EXCEED THE AMOUNT CUSTOMER PAID TO BUTLER FOR THE GOODS TO WHICH THE LIABILITY RELATES. CUSTOMER RECOGNIZES THAT THE PRICING ASSOCIATED WITH GOODS REFLECTS THIS ALLOCATION OF RISK AND IS THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FOREGOING LIMITATIONS SHALL BE VALID AND ENFORCEABLE, NOTWITHSTANDING ANY ALLEGED FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDIES SET FORTH HEREIN. ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THE GOODS WILL BE BARRED UNLESS A LEGAL PROCEEDING IS COMMENCED WITHIN ONE (1) YEAR FROM DELIVERY OF THE GOODS TO CUSTOMER.
11. Choice of Law; Waiver of Jury Trial. These Terms shall be governed by and construed in accordance with the laws of the State of North Dakota without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity related to or arising from Customer’s purchase of Goods from Butler will be in the state or federal courts located in Cass County, North Dakota. Each party knowingly, voluntarily, irrevocably, and unconditionally waives its right to a jury trial of any claim or cause of action based on or arising out of the purchase of Goods from Butler (including, but not limited to, contract, tort, breach of duty, and all other common law and statutory claims). Each party (a) understands that this is a waiver of an important legal right, and (b) acknowledges having had a reasonable opportunity to discuss this waiver and its effects with legal counsel.
12. Force Majeure. Butler will not be liable or responsible, nor be deemed to have defaulted or breached these Terms for any failure or delay in its performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the Buyer’s reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to the Butler’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
13. General. It is agreed that: (a) Customer may not assign Customer’s rights and obligations hereunder without Butler’s consent, which may be withheld at Butler’s sole discretion; (b) these Terms (including the terms of any documents referenced herein) constitute the entire agreement between Butler and Customer with respect to Customer’s purchase of Goods from Butler, and supersede and replace all prior agreements; (c) no amendment or modification of these Terms shall be effective unless set forth in a written document signed by an officer of Butler; (d) the section titles in these Terms are for convenience only and have no legal or contractual effect; (e) the terms and conditions of any quotation, offer, acknowledgement, invoice, or similar document, however designated, directly or indirectly made or issued by Customer shall not apply; (f) if any provision in these Terms is found to be invalid, unlawful or unenforceable, the remaining provisions in these Terms shall remain in full force and effect; and (g) a party’s waiver of any breach will not constitute a waiver of any different or subsequent breach.