Terms of Sale

TERMS OF SALE

1. Every sale by Niagara Machine, Inc., its subsidiaries and/or affiliates (“Seller”) of any equipment, machinery, item, good, product, surface treatment, attachment, accessory, part, or consumable (collectively, “Goods”) to a buyer, purchaser, reseller, distributor, or end user (“Seller”), including every quote or invoice sent by Buyer to Seller is expressly subject to these Terms of Purchase (the “Terms,” and jointly with the corresponding quote, sales order, and/or invoice, the “Order”).  Buyer’s purchase of Goods from Seller will be governed by such Order, and the Terms shall be incorporated into all future Orders between Buyer and Seller. No terms of any purchase order, terms and conditions of sale, or other document Buyer issues to Seller (collectively, “Buyer Terms”) will bind Seller or become part of the contract between Buyer and Seller. Seller’s sale of Goods is expressly conditioned on Buyer’s acceptance of the Order, including these Terms. Seller expressly disclaims all different and additional terms in any documents Buyer issues, including, without limitation, any Buyer Terms.
2. Buyer will be deemed to have accepted an Order, including Terms, if Buyer does not object to the Order before Buyer ships any Goods in the Order to Seller. Seller may withdraw an Order at any time before Buyer accepts it. Any reference by Buyer to Buyer’s purchase order is solely for the purpose of incorporating the description and specifications of the Goods contained therein and only to the extent that such description and specifications do not conflict with the description and specifications on the face of the Order. In the event of a conflict between the terms of an Order and Buyer Terms, the Order shall govern.
3. Seller will deliver the Goods to Buyer in accordance with the Order. Seller will deliver to Buyer a complete and detailed packing slip describing the Goods, Order number, item number, and quantity shipped.
4. Default by Buyer. If Buyer fails to perform any of its material obligations under any Order, such failure will constitute a default (“Default”), and Seller reserves the right to send Buyer a Notice of Default providing Buyer with an opportunity to cure the Default within five (5) days of such notice. If Buyer fails to timely cure the Default within this five (5) day period, Seller may terminate the Order and pursue all remedies available to Seller at law for Buyer’s Default.
5. Buyer shall inspect all Goods immediately upon delivery and in no event later than the earlier of (a) installation, use, resale, or modification of the Goods, or (b) one (1) day after delivery (the “Inspection Period”). Buyer shall provide Seller with written notice of any alleged non‑conformity, shortage, damage, including damage suffered during the shipping phase, or defect in the Goods within the Inspection Period, specifying in reasonable detail the nature of the alleged non‑conformity. Buyer’s failure to provide such written notice within the Inspection Period shall constitute an irrevocable acceptance of the Goods. Nothing in this Section shall be construed to expand or create any warranty. Any claim relating to a latent defect not reasonably discoverable upon inspection shall be governed solely by the terms of applicable Manufacturer Warranties (defined below), if any, and Seller shall have no independent liability with respect thereto.
6. Payment. Unless otherwise specified, the purchase price of the Goods shall be reflected in the Order and issued by Seller. Without prejudice to any other right or remedy it may have, Seller reserves the right to set off at any time any amount Seller owes Buyer against any amount Buyer owes Seller. 
7. Buyer expressly acknowledges and agrees that (a) Buyer is acquiring the Goods on the basis of its knowledge of or own investigation of the physical condition of the Goods, their value, capacities, and Buyer’s intended use thereof, and assumes the risk that adverse conditions may not be revealed by Buyer’s investigation; (b) Buyer is responsible for providing, installing, and/or utilizing proper safety devices and equipment to meet all applicable safety standards, rules, instructions, and regulations with respect to use of the Goods; and (c) the only warranties applicable to Seller’s sale of Goods to Buyer are solely those warranties provided by the original manufacturer of the Goods, if any (“Manufacturer Warranties”).  Seller does not provide, adopt, or assume any such Manufacturer Warranties.  MANUFACTURER WARRANTIES ARE THE EXCLUSIVE WARRANTIES APPLICABLE TO THE GOODS UNDER ANY ORDER, AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER LAW OR IN EQUITY OR VIA COURSE OF DEALING OR CUSTOM OF THE TRADE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, WORKMANLIKE QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT.  Buyer acknowledges that it is a merchant or sophisticated commercial purchaser, that the Goods are purchased for business or commercial use and not for personal, family, or household purposes, and that the warranty disclaimers and limitations set forth herein are a material part of the parties’ bargain.  Buyer agrees that no course of dealing, course of performance, or usage of trade shall be deemed to modify or supplement the express warranty disclaimers contained herein.
8. No Indemnification for End-User Products Liability Claims. To the fullest extent permitted by law, Seller shall have no obligation to defend, indemnify, or hold harmless Buyer from or against any losses, liabilities, damages, claims, demands, causes of action, judgments, settlements, costs, or expenses (including attorneys’ fees) arising out of or relating to any products liability claim asserted by an end user or other third party, including any claim based upon or alleged to arise from: (a) any failure to warn, inadequate warnings, instructions, labels, manuals, or safety information; (b) the inherently dangerous, hazardous, or unsafe nature of the Goods; or (c) the design, manufacture, formulation, testing, marketing, or labeling of the Goods, regardless of the theory of liability asserted, including negligence, breach of warranty, or any claim asserted under Chapter 99B of the North Carolina General Statutes.
9. Allocation of Risk. Buyer assumes all risk associated with the resale, distribution, marketing, instruction, and end‑user use of the Goods.
10. If Buyer breaches any terms of an Order, Seller may elect to terminate the Order, in whole or in part, and to pursue its other rights and remedies under applicable law, all of which are cumulative. Without limiting the foregoing, Seller will be entitled to recover from Buyer all of Seller’s costs and expenses, including consequential damages, arising from Buyer’s breach of the Order.
11. Buyer will not disclose, communicate or otherwise divulge to any person or entity other than Buyer’s employees who have a need to know in order to allow Buyer to comply with its obligations under the Order, any of Seller’s specifications, drawings, financial data, engineering plans, customer-related information, designs, trade secrets, or knowhow or the terms of the Order (collectively, “Confidential Information”). Buyer will only use Confidential Information to comply with its obligations under the Order and for no other purpose whatsoever. All Confidential Information will remain Seller’s property, and Buyer will have no right, title, or interest in any Confidential Information. At Seller’s request at any time, Buyer will return all Confidential Information (in whatever original, digital, or other form it may be) to Seller or destroy the same and promptly certify to Seller in writing it has done so.
12. Applicable Law. The Order, the purchase and sale of Goods, and any dispute or controversy relating to the foregoing will be governed by and construed in accordance with the laws of the State of North Carolina, excluding its conflict of law principles. The United Nations Convention on the International Sale of Goods is expressly excluded and will not apply. Any dispute, suit, action or other proceeding relating to the Order, a breach of the Order, or the purchase and sale of Goods will be commenced and heard only in the North Carolina state courts or the United States District Court for the Western District of North Carolina. Seller and Buyer consent to the venue and jurisdiction of those courts. 
13. Buyer may not assign the Order or any of its rights under the Order (by contract, merger, operation of law or otherwise) to any person or entity without Selle’s prior written consent. Any attempted assignment without Seller’s consent will be void.
14. Sections 1 and 6 through 14 of these Terms will survive the termination of an Order for any reason. The Order contains the entire agreement of the parties regarding the Goods described in the Order and may be amended only by a written agreement both parties sign. Any waiver of strict compliance with any of the terms and conditions of this Order by Seller must be in writing and signed by Seller, and any such waiver will not constitute a waiver of Seller’s rights under any other provision of these Terms or any Terms in another Order. If any provisions of this Order are determined to be invalid or unenforceable, the remaining provisions shall remain in effect and be binding to the fullest extent permitted by law. All notices or other communications authorized or required to be given pursuant to this Order shall be in writing and either delivered by hand, e-mail or mailed by registered, first-class, postage prepaid to the addresses set out on the face hereof.