SALES AND SERVICE TERMS FOR NMC-CAT PRODUCTS
1. Agreement. These Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology, and parts) (“Goods”) and services (“Services”) from Nebraska Machinery Company LLC (“NMC”) by any individual or entity that purchases such Goods or Services (“Buyer”). Any transactions for Goods or Services or the receipt or acceptance of Goods or Services by Buyer constitutes Buyer’s acceptance of these Terms exactly as written. NMC hereby rejects the terms of any purchase order or other document submitted by Buyer modifying, replacing or supplementing these Terms, unless the document is signed by the President or an Executive Vice-President of NMC.
2. Order and Delivery of Goods or Services. Buyer’s order is an offer to buy, under and in accordance with these Terms. All orders for Goods and/or Services are subject to approval and final acceptance by NMC in its sole discretion. The order will be deemed approved and accepted by NMC when either (a) an order confirmation is sent; or (b) when the Goods are delivered. Buyer shall have no right to cancel orders for Goods once an order is accepted by NMC without the written authorization of NMC. Buyer acknowledges that delivery dates for Goods are estimates only and that actual delivery dates depend on a variety of factors (including, but not limited to, the production schedules of manufacturers). While NMC will use commercially reasonable efforts to meet estimated delivery dates and shall keep Buyer advised of the status of its delivery, NMC shall have no liability for any delay or inability to perform the Services or deliver Goods caused by any circumstances beyond NMC’s direct control (including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, epidemics, strikes, labor shortages or disturbances, shortages of materials, restraints or delays affecting carriers, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements). NMC reserves the right to cancel Buyer’s order due to availability issues and NMC shall not be liable for any costs, liability or obligations to Buyer or any third party due to such cancellation.
3. Pricing. Unless otherwise specified by NMC, the price for new parts shall be NMC’s list price for such parts as shown on NMC’s PCC e-site at the time of order, as confirmed in the order confirmation provided to Buyer; the price for a new machine shall be NMC’s list price for such machine on the date the machine ships from the factory; and the labor rates for Services shall be NMC’s standard labor rates for the applicable type of Service (field rates, shop rates, mine rates, or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Buyer will promptly pay to NMC any taxes that NMC is required to collect with respect to the purchase of Goods and/or Services, including, but not limited to, value added, personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Buyer claims exemption, Buyer shall provide NMC with properly completed exemption certificates and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and/or Services. If Buyer fails to provide an appropriate exemption certificate and supporting documentation, as determined by NMC, Buyer will remain liable for all such Taxes and will indemnify NMC for any liability related to the same. Title to purchased Goods shall pass to Buyer upon the later of (a) shipment or delivery of the Goods to the Buyer, or (b) payment in full for the Goods. Risk of loss for purchased Goods is FOB NMC’s site, unless purchased Goods are shipped to Buyer directly from the manufacturer, in which case risk of loss is FOB factory. Any claims for shortages, damages, or delays in shipping must be made by Buyer directly to the carrier.
4. Payment Terms. For Buyers with an open credit account with NMC who are purchasing pursuant to such open credit account, machine sales payments are due Net 10, and all other payments are due Net 30. For Buyers who do not have an open credit account with NMC, payment is due either in advance or upon delivery of Goods or completion of Services. For Buyers who are purchasing Goods or Services online, payment may be made by credit card at the time of purchase or as otherwise specified by NMC from time to time. NMC may, in its sole discretion, at any time: (a) revoke credit; (b) modify terms and conditions of credit; (c) require payment in advance; and/or (d) withhold Goods, completed Services or scheduled Services until receipt of payment. If Buyer fails to pay for Goods and/or Services as and when due, Buyer shall pay a late charge of 1.5% of the invoice balance each month until charges are paid in full. Unless the Goods are paid for in full at or before delivery, NMC retains a Uniform Commercial Code security interest in such Goods (together with any and all substitutions, additions, accessions, sale or other proceeds). Buyer shall execute and deliver to NMC any evidence of indebtedness that NMC may require. Any note so taken by NMC shall evidence indebtedness only and is not payment for the Goods. Buyer shall pay NMC all reasonable attorneys’ fees and collection costs incurred by NMC. In addition to any other right of set-off or recoupment NMC has under applicable law, Buyer agrees that, with respect to any amounts due from Buyer or Buyer’s affiliates to NMC or NMC’s affiliates, NMC and its affiliates may set-off such amounts against any amounts owing to Buyer or Buyer’s affiliates. Buyer must pick up its equipment from NMC’s facility and provide payment in full within four (4) business days after notification from NMC of completion of Services. If Buyer’s equipment is not picked up and paid for in full within four (4) business days after such notification, NMC is entitled to a lien upon such equipment to secure funds owed to NMC and Buyer will be liable, without further notice, for storage charges of up to $300.00 per day from the date of completion of Services until Buyer’s equipment is picked up. To the extent permitted by applicable law, NMC may sell or otherwise dispose of Buyer’s equipment if such equipment remains in NMC’s possession after 30 days from the completion of Services.
(a) New Goods. If Buyer is purchasing new Goods from NMC, Buyer acknowledges that (i) NMC is not the manufacturer of the Goods; (ii) if the Goods include a manufacturer’s warranty, NMC will pass through to Buyer 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. In certain circumstances, Buyer may have the option of purchasing an equipment protection plan or extended service coverage (each, an “Extended Protection Product”); if such an Extended Protection Product is available and is purchased by Buyer at the time of sale, the Extended Protection Product will be subject to all conditions and exclusions included in such Extended Protection Product.
(b) Used Goods. If Buyer is purchasing used Goods from NMC, Buyer acknowledges that the only warranties with respect to such used Goods are those warranties, if any, expressly set forth in the bill of sale signed by NMC.
(c) Services. If Buyer is purchasing Services from NMC, NMC warrants that its Services will be completed in a good and workmanlike manner, with such service warranty extending for a period of twelve (12) months from completion of the original Services. In the event of a breach of the foregoing service warranty, NMC shall, in its sole discretion, either (a) use commercially reasonable efforts to cure such breach; or (b) credit or refund the price of any defective Services. The foregoing remedies shall be Buyer’s sole and exclusive remedies for any breach of NMC’s service warranty. If NMC performs a repair pursuant to its service warranty, the warranty period remains twelve (12) months from completion of the original Services; the twelve (12) month service warranty period does not start over with the repair. If the replacement parts used by NMC in connection with the provision of Services include a manufacturer’s warranty, NMC will pass such warranty through to Buyer to the extent permitted by the terms of the manufacturer’s warranty. NMC’s service warranty will be voided in the event of any of the following: misuse or abuse of Goods by Buyer, subsequent repairs performed by Buyer or vendors other than NMC, use beyond ordinary wear and tear, failure to maintain and operate Goods in accordance with the maintenance and operations manual of the manufacturer (including, but not limited to, use of fluids that do not meet the manufacturer’s standards or failure to maintain fluid levels recommended by the manufacturer) or damage due to theft, vandalism or casualty.
(d) WARRANTY DISCLAIMER. Except for the express warranties set forth in this Section 5, NMC makes no warranty, express or implied, oral or written, with respect to any Goods or Services, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, or title, 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 NMC and waived by Buyer.
6. Liability Limitation. In no event shall either party be liable, whether based in contract, warranty, indemnity, tort, strict liability, or any other theory of law or equity, for any special, incidental, indirect, punitive, exemplary or consequential damages, including, but not limited to, lost profits, loss of use of property or equipment, downtime, loss of third party contracts, or lost production, regardless of whether or not such party was advised of the possibility of such damages.
7. Insurance: Buyer shall maintain and provide insurance on the Goods adequate to protect NMC’s interest in the Goods, until such time as Buyer fully pays for the Goods.
8. Exportation and Other Laws: Buyer represents and warrants that Buyer shall comply with all applicable U.S. export rules, regulations and other laws. Buyer shall also comply with any and all rules, regulations and other laws relating, in any way, to the Goods use, warnings, re-sale, dismantling and/or disposal.
9. Privacy Statement. Buyer consents to the collection, use, retention and disclosure of information by NMC and its parent, subsidiary and affiliated entities (collectively, “NMC Entities”) in accordance with NMC’s Privacy Statement, which is posted at https://www.nmccat.com (as such statement may be revised from time to time), and agrees that such information may be accessed by the NMC Entities and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf.
10. Product Information. If Caterpillar equipment provided to Buyer is equipped with Product Link or other equipment monitoring technology, data concerning the equipment, its condition and its operation (“Telematics Information”) is being transmitted to Caterpillar, its affiliates, the NMC Entities and/or other Caterpillar dealers to better serve Buyer and to improve Caterpillar products and services. Telematics Information being transmitted may include machine serial number, machine location, and other machine data including, but not limited to, fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers and installed attachments. The Telematics Information will be collected, used, retained and disclosed in accordance with the Caterpillar Data Governance Statement, which is posted at https://www.caterpillar.com/en/legal-notices/data-governance-statement.html (as such statement may be revised from time to time) (“Statement”). Buyer consents to the collection, use, retention and disclosure of the Telematics Information in accordance with the Statement and agrees that the Telematics Information may be accessed by Caterpillar, its partners, its affiliates, its subsidiaries, the NMC Entities and/or other dealers with a legitimate business reason to access it, as well as third parties who may process the Telematics Information on their behalf. As set forth in the Statement, Caterpillar may use Telematics Information in combination with information about Buyer. Buyer further acknowledges and agrees that Telematics Information may be made available to subsequent owners of equipment.
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 Nebraska without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in Douglas County Nebraska. 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 or Services from NMC (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. General Provisions. These Terms constitute the final written expression of the terms of agreement between NMC and Buyer in relation to the subject matter of these Terms and it is the complete and exclusive statement of these terms. These Terms supersede and merge all prior or collateral agreements, discussions and/or understandings (oral, written or of any other type) between the parties hereto. Buyer may not assign Buyer’s rights or obligations hereunder without NMC’s prior written consent, and any such attempted assignment will be void. No amendment or modification of these Terms shall be effective unless it is set forth in a written document signed by the President or an Executive Vice-President of NMC. 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. A party’s waiver of any breach will not constitute a waiver of any different or subsequent breach. Any rule of construction requiring that ambiguities be resolved against the drafting party shall not apply to the interpretation of these Terms. NMC retains ownership of all records relating to Goods and Services provided to Buyer (“Records”) and may disclose the Records pursuant to a court order, in the event disclosure of the Records becomes part of NMC’s defense in a legal matter or any other legitimate business interest of NMC. Buyer warrants that the invoiced Goods or Services will be used for business or agricultural purposes and not for personal, family or household purposes.