Hustler Equipment USA, INC. Terms and Conditions of Sale
GENERAL: Equipment and/or parts (hereafter, “Goods”) supplied by Hustler Equipment USA, Inc. (“Hustler USA”) or a Hustler USA authorized dealer, are supplied upon the following Terms and Conditions of Sale (these “Terms and Conditions”), and not otherwise. Hustler USA expressly rejects any conditional sales order placed by the purchaser (“Customer”).CUSTOMER UNDERSTANDS AND AGREES THAT, NOTWITHSTANDING THE FACT THAT CUSTOMER MAY NOT EXECUTE THESE TERMS AND CONDITIONS, HUSTLER USA IS PROVIDING THE GOODS IN RELIANCE ON THE PROVISIONS OF THESE TERMS AND CONDITIONS UNMODIFIED BY ANY ORAL OR WRITTEN STATEMENTS BY CUSTOMER OR BY ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER WRITING OF THE CUSTOMER. ALL ORDERS PLACED WITH HUSTLER USA CONSTITUTE THE ACKNOWLEDGEMENT AND ACCEPTANCE OF ALL TERMS AND CONDITIONS STATED HEREIN.
PURCHASE ORDERS: A Purchase Order (written or verbal) shall be deemed an offer by Customer to purchase the Goods, which offer shall include these Terms and Conditions in their entirety. All orders for Goods shall be subject to acceptance by Hustler USA. Hustler USA may accept such offer by either dispatching the Goods to Customer or by giving written notice to Customer of its acceptance.CUSTOMER UNDERSTANDS AND AGREES THAT ANY AND ALL TERMS AND CONDITIONS THAT MAY BE SET FORTH IN A CUSTOMER PURCHASE ORDER (AND ALL OTHER DOCUMENTS SUBMITTED BY CUSTOMER TO HUSTLER USA IN CONNECTION THEREWITH) THAT ARE NOT CONSISTENT WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE VOID AND OF NO EFFECT WHATSOEVER. AS SUCH, HUSTLER USA SHALL NOT BE DEEMED TO HAVE ACCEPTED ANY TERMS AND CONDITIONS IN A CUSTOMER PURCHASE ORDER THAT ARE INCONSISTENT WITH THESE TERMS AND CONDITIONS.
PRICE: Unless otherwise stated in an accepted Purchase Order, the price for the goods is the price quoted by Hustler USA to the Customer in respect of the particular order. If no written quote is provided (or a written quote has lapsed) the price shall be Hustler USA’s standard charges applying at the time of delivery of the Goods, as set forth in Hustler USA’s published price list in force as of the date of Customer’s purchase order. Hustler USA’s standard prices applying at the time of delivery of the Goods Prices do not include sales, use, excise, or similar taxes. Consequently, the amount of any present or future sales, use or similar tax applicable to the sale or use of the Goods shall be paid by Customer. The Customer shall arrange or bear the cost of delivery, freight and insurance, unless otherwise agreed to in writing by Hustler USA. A price quotation not accepted by Customer within 30 days may be changed by Hustler USA.
PAYMENT/DELINQUENCY CHARGE: Unless otherwise provided for in an accepted Purchase Order, customer shall pay the Purchase Price and all other all amounts owing under these Terms and Conditions in full upon delivery of the Goods, without any set-off, withholding, or deduction of any kind. At any time prior to delivery of the Goods, Hustler USA may in its absolute discretion, require (a) the Customer to pay a non-refundable deposit, (b) procure an irrevocable letter of credit from a major trading bank acceptable to Hustler USA, or (c) such other form of payment assurance as is satisfactory to Hustler USA. Any Payment terms for any amounts not paid prior to or at the time of delivery of the Goods are net thirty (30) days from the date of Hustler USA’s invoice. If payment in full for the applicable Goods is not made on or before the due date for payment, Hustler USA reserves the right to (a) cancel and/or withhold delivery of further Goods; and (b) charge interest at the lesser of (i) one and one-half percent (1.5%) per month (eighteen (18) percent per year), or (ii) the maximum amount permissible under applicable law, on all balances not paid by Customer within the designated net terms. Hustler USA reserves the right to require payment prior to the time of shipment if, in Hustler USA’s opinion, exercised in Hustler USA’s subjective judgment, Customer’s financial condition has deteriorated or the risk of non-payment has otherwise increased.
DELIVERY AND FREIGHT CHARGES: Delivery shall be made F.O.B. at the Hustler USA location set forth in an accepted Purchase Order or if not set forth at the Hustler USA facility nearest to the place where the purchase order was received by Hustler USA (in each case the “Delivery Point”). The Customer shall make all arrangements necessary to take delivery of the Goods at the Delivery Point. All delivery dates are approximates only, are based upon prompt receipt of all necessary information from Customer and are subject to Hustler USA’s ability to effect transport by available means. Hustler USA shall ship Goods to the Delivery Point via transportation as determined by Hustler USA. Hustler USA will not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, incidental, special or consequential damages, resulting from any delay in the delivery of the Goods.
ACCEPTANCE OF GOODS: No claims that the ordered Goods are non-conforming or damaged will be recognized unless made in writing to Hustler USA within ten (10) days of delivery. If no such claim is made, the Goods shall be deemed to have been accepted by Customer. By accepting the Goods, Customer acknowledges that Hustler USA’s performance has fully satisfied all terms, conditions and specifications of the Purchase Order and these Terms and Conditions.
RETURN: Customer shall not return any Goods actually delivered to Customer without the consent of, and upon terms agreed to, by Hustler USA. Hustler USA may, in its absolute discretion, accept the return of standard Goods to the credit of the Customer provided that such Goods are returned to the Delivery Point or other location designated by Hustler USA unused and undamaged before the expiration of 14 days after their delivery to Customer and Customer agrees to pay a handling and administration charge equal to 10 per cent of the purchase price. No returns of special products will be accepted. Notwithstanding the foregoing, Hustler USA, at its discretion, shall reimburse Customer for all shipping, handling and administrative expenses associated with the return of goods covered by Section 8 hereof.\
LIMITED WARRANTY: Subject to the limitations set forth herein, Hustler USA warrants that new Goods sold by it as identified in an accepted purchase order will be free of defects in materials or workmanship for a period of two (2) years from the date of delivery to Customer. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY STATED HEREIN. The warranty is made to the original purchaser from Hustler USA only, and is subject to the following:
Hustler USA’s sole obligation with respect to Goods which, under normal use and service, fail to conform to the above warranty is to repair or, at its option, replace the Good without charge to the Customer. Such Good must be returned to Hustler USA within twenty-four (24) months from the date of delivery of Goods. Risk of loss to any Goods returned to Hustler USA or a Hustler USA authorized dealer for servicing or repair remains with the Customer at all times. This is the sole obligation of Hustler USA with respect to Goods that do not conform to the above warranty. This warranty applies to new Goods only. Used equipment is not warranted by Hustler USA.
The above warranty shall be void and shall not apply to Goods which have been subject to operation in excess of recommended capacities, misused, damaged by neglect or accident, or have been altered or repaired in any manner not authorized by Hustler USA.
This warranty covers only defects in material and workmanship; it does not cover depreciation or damage caused by normal wear, improper maintenance, or improper protection and use. The cost of normal maintenance and normal replacement of service items shall be paid by the Customer.
NO REPRESENTATION OR IMPLIED WARRANTIES. The above warranty is not a guarantee against the occurrence of any defect in material or workmanship, and provides only for the repair and replacement of Goods which fail to conform. Neither Hustler USA nor any company or person affiliated with it, makes any warranties, representations, or promises, express or implied as to the quality or performance of its Goods other than those set forth above. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION AS TO MERCHANTABILITY OF FITNESS FOR A PARTICULAR USE OR PURPOSE. The only remedies a Customer has in connection with the breach of performance of any warranty on Hustler USA Goods are those set forth above. NOTE: Some states do not allow limitations on implied warranties, so the above limitation may not apply.
LIMITATION OF LIABILITY: HUSTLER USA’S SOLE LIABLITY ARISING FROM THE SALE OF THE GOODS SHALL BE LIMITED EXCLUSIVELY TO REPAIRING OR REPLACING GOODS UNDER THE CONDITIONS SET FORTH ABOVE. NEITHER HUSTLER USA NOR ANY COMPANY OR PERSON AFFILIATED WITH HUTLER USA SHALL BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, CORP LOSSES OR ANY DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE PURCHASE AND SALE OF THE GOODS AND/OR ANY BREACH OF THE WARRANTY SET FORTH ABOVE, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
FAILURE BY CUSTOMER: If Customer fails to perform any of its obligations under a Purchase Order or under these Terms and Conditions, or in the event of death, bankruptcy or insolvency of Customer, dissolution or modification of Customer, or non-payment for the goods shipped. Hustler USA shall have the right to cancel any pending purchase orders with Customer or to postpone the shipment, or to stop delivery of Goods in transit, and Customer shall reimburse Hustler USA for any loss, damage and expense sustained there from.
TITLE AND RISK OF LOSS/GRANT OF SECURITY INTEREST: Title and risk of loss passes to Customer upon delivery of the Goods at the Delivery Point. Unless the purchase price has been paid in full prior to delivery of the Goods, as security for the full payment of the purchase price of the Goods and performance in full of all the obligations of the Customer, the Customer hereby grants to Hustler USA, a lien on and security interest in and to all of the right, title, and interest of the Customer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code. Customer authorizes Hustler USA or anyone acting on its behalf to file such financing statement or statements relating to the Goods it may deem appropriate to perfect and continue its security interest.
CUSTOMER COMPLIANCE WITH LAWS AND STANDARDS, AND SAFETY PRECAUTIONS: Customer shall comply with and be responsible for all federal, state, and local laws, regulations and ordinances (including environmental and safety codes) and all industry standards which are or may hereafter be in effect from time to time with respect to selection, installation and/or use of the Goods. Customer shall exercise suitable safety precautions and shall follow and require employees to follow all installation and use procedures and recommendations as may be published by Hustler USA from time to time, including those designed to prevent injury or damage to person or property. It is Customer’s responsibility to provide all the means that may be necessary to effectively protect its employees and other persons form serious bodily injury which otherwise may result from the method of installation or use of the Goods. If Customer fails to comply with the provisions of this paragraph or the applicable standards or regulations aforementioned, or the manuals and instructions provided by Hustler USA, Customer shall indemnify and save Hustler USA, and its respective employees and agents, harmless from and against all claims, losses or damages arising there from.
FORCE MAJEURE: Hustler USA’s obligations hereunder are subject to, and Hustler USA shall not be held responsible for, and delay or failure to make delivery of all or any part of the Goods due to acts or circumstances beyond the control of Hustler USA, including, but not limited to, labor difficulties, fires, casualties, accidents, acts of God, acts of war or terror, transportation difficulties, inability to obtain products, materials or components or qualified labor sufficient to timely perform part of all of any obligation or governmental regulations or actions. In the event of the occurrence of any of the foregoing at the option of Hustler USA, Hustler USA shall be excused from performance of its obligations under the Purchase Order and hereunder and/or the time of performance of Hustler USA shall be correspondingly extended.
NO WAIVER: Any failure by Hustler USA to enforce at any time any term or condition hereof shall not be considered a waiver of Hustler USA’s right thereafter to enforce the same or any other term or condition hereof.
GOVERNING LAW: This agreement and any sale of Goods to Customer shall be deemed to have been made in and governed by the substantive laws of the State of Minnesota, without regard to choice-of-law provisions. Any dispute concerning the Goods of the terms of their purchase and sale may only be litigated in the courts in St. Paul, Minnesota, and Customer expressly consents and submits to the jurisdiction of said courts.
EFFECT OF OTHER AGREEMENTS: These Terms and Conditions, and Hustler USA quotation or purchase order to which they are attached, constitute the entire agreement between Hustler USA and Customer for the purchase and sale of Goods from Hustler USA, and supersede any and all prior or contemporaneous written or oral agreements, correspondence, quotations, understandings, negotiations or discussions between the parties relating to the subject matter hereof. It is expressly agreed that any brochures, sales literature, on-line materials or other materials of Hustler USA, have been provided for informational purposes only, have not been relied upon by Customer, do not form or give rise to any warranty, and are superseded by these Terms and Conditions.
SEVERABILITY: If any term or condition or part of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the remaining terms and conditions hereof shall not be affected thereby and the effect thereof shall be confined to the provisions as to which such adjudication is made.
BINDING EFFECT: These Terms and Conditions shall be binding upon the successors, legal representative, and permitted assigns of Customer and Hustler USA.
MODIFICATION: These Terms and Conditions may not be modified, cancelled, or assigned unless Hustler USA agrees in writing.
ATTORNEY’S FEES: Reasonable attorney’s fee and costs shall be awarded to Hustler USA if it is the prevailing party in any legal proceedings to recover amounts due for Goods sold to Customer, or in any legal proceedings involving the enforcement or interpretation of these Terms and Conditions.