|
General Conditions for Surplus Sales Contracts
1. Price:
A. The price(s) specified do not include weighing fees or sales, use, exercise or other taxes payable on account of this transaction. All such fees and taxes are in addition to such price(s) and shall be paid by buyer.
B. Buyer shall complete and return to seller a sales or use tax certificate of exemption, as appropriate. Buyer may use the enclosed sales tax resale certificate or an equivalent exemption certificate for this purpose.
2. Payment:
A. Seller may at any time require payment in advance or satisfactory security or guarantee that invoices will be promptly paid when due. If buyer fails to comply with any terms of payment or requirements to secure payment, seller reserves the right to withhold deliveries or terminate this contract, and any unpaid amount shall thereupon become immediately due and payable.
B. The terms of payment are as stated herein. Payments are due from date of invoice. If invoices are not paid when due, all overdue amounts shall bear interest until paid at a rate equal to the lower of (a) the rate of interest per annum as quoted by the Bank of America, San Francisco main office, from time to time as its prime lending rate, plus two percent (2%) per annum, compounded daily and (b) the highest rate of interest permitted under applicable law. All such overdue amounts, together with interest thereon, are payable on demand.
3. Warranties:
A. All equipment, goods and other materials purchased and sold hereunder are surplus and are purchased and sold "as is," "where is" and "with all faults"
B. Seller represents and warrants that it will convey to buyer good title to all of the equipment, goods and other materials purchased and sold hereunder. Seller makes no other representations or warranties of any kind, oral or written, express or implied, including, without limitation, any warranty or other representation as to the condition, safety, suitability or utility of such equipment, goods and other materials or any warranty or other representation as to merchantability or fitness for any particular use or purpose with respect to the same.
C. Buyer represents and warrants that it has inspected prior to purchase and sale all of the equipment, goods and other materials purchased and sold hereunder as fully and completely as buyer desires and that buyer is fully satisfied with the same in the form, state and condition purchased and sold hereunder.
4. Removal and delivery:
A. Unless otherwise specified herein, seller shall dismantle or disassemble the equipment, goods and other materials purchased and sold hereunder as necessary and shall load and deliver the same fob carrier at seller's premises or, if located elsewhere, at that location.
B. If this contract requires buyer to dismantle, disassemble and/or load the equipment, goods and other materials purchased and sold hereunder, buyer shall do so at the buyer's sole risk, cost and expense and seller shall be deemed to have delivered the same ex works at seller's premises or, if located elsewhere, at that location on the date and as of the time buyer first commences work.
C. If this contract requires buyer to dismantle, disassemble and/or load the equipment, goods and other materials purchased and sold hereunder, the following additional terms and conditions shall apply:
(a) Buyer shall perform the work in the best and most workmanlike manner, using qualified, efficient and careful workers, and in compliance with all health, safety, security, fire protection and first aid requirements set forth in exhibits "s" and "s-l," "contractor health, safety, security, fire protection and first aid requirements," to this contract. Buyer shall discharge the obligations of "contractor" there under. Buyer shall take all reasonable precautions to perform the work so as not to interfere with seller's operations or with the operations of others working on seller's premises. All work shall be completed by the date(s) specified herein or, if no such date(s) is/are specified, as soon as reasonable diligence will permit. Buyer shall leave seller's premises and/or any other location where work is to be performed in good order and condition and free of all rubbish and other debris which may have been generated in connection with such work.
(b) Buyer shall, at its expense, procure and maintain the following insurance:
Workers' compensation insurance in the amount required by all applicable laws, including, without limitation, the longshore and harbor workers' compensation act and any other federal compensation act or maritime act, and employer's liability insurance to a limit of not less than $1,000,000. Buyer before commencing any work under this contract shall be qualified under the workers' compensation laws of the state or states in which the work or any portion of the work is to be performed and shall at all times comply with the provisions of said laws. All subcontractors of buyer shall be required by buyer to maintain the above described insurance coverages and to comply with qualification requirements of all applicable workers' compensation laws; buyer shall do so on behalf of its subcontractors if its subcontractors fail to maintain sand insurance or to comply with sand qualification requirements.
(ii) Comprehensive general liability insurance, including, without limitation, automobile liability covering buyer and its employees for all of buyer's operations hereunder, including, without limitation, the operations of all subcontractors, the operation of vehicles and equipment by buyer or any and all subcontractors and liability assumed under the "indemnity" provision of this contract, with limits of not less than $5,000,000 as a combined single limit for injury to, or death of, any person or persons and for property damage, including consequential loss, arising out of any single occurrence.
(c) Prior to commencement of the work, buyer shall provide seller with certificates of insurance which demonstrate compliance with the terms of this article 4. The comprehensive general liability policy (i) shall name Commercial Development Company as an additional insured, (ii) shall provide that other insurance which seller may have to insure loss shall be in excess of and not contribute to a loss to which the insurance provided herein -,-, by buyer is applicable, and (in) shall provide that the insurer waives any right to subrogation which might arise by reason of any payment under the policies against Commercial Development Company, its subsidiaries, its affiliated companies and the agents and employees of any of the foregoing.
(d) Insurance deductibles, if any, shall not exceed $10,000 per occurrence and shall be absorbed entirely by buyer with no contribution by seller. In the event of a reduction or exhaustion of any aggregate limit, buyer shall secure additional insurance or shall have excess insurance available so as to comply at all times with the above requirements as to limits.
5. Title and risk of loss
A. Except as provided in paragraph b of this article 5, ownership and risk of loss to the equipment, goods and other materials purchased and sold hereunder shall pass from seller to buyer when the same have been delivered or are deemed to have been delivered fob carrier or ex works, as the case may be. If, following delivery, any of such equipment, goods and other materials remain on seller's premises or at another location pending removal by buyer, seller shall have no obligation or duty as a warehouseman, bailee or otherwise to insure, protect, keep safe or otherwise act in respect thereto, the risk of loss and/or damage to such equipment, goods and other materials being solely that of buyer.
B. Title to the equipment, goods and other materials purchased and sold hereunder shall be retained by seller as security for buyer's performance hereunder until seller shall have received payment in full of the purchase price together with all interest, if any, accrued thereon.
6. Limitation of liability:
A. If, prior to delivery, all or any portion of the equipment, goods and other materials purchased and sold hereunder is lost, damaged, destroyed or reduced in size or amount to a material degree by any cause or for any reason whatsoever, buyer may elect either (a) to cancel this contract by means of written notice delivered to seller prior to any delivery or deemed delivery hereunder or (b) to accept an equitable adjustment in the purchase price on account thereof. These shall be buyer's sole and exclusive remedies in any such case, seller being under no obligation whatsoever to repair, replace or otherwise provide substitutes for, all or any portion of the equipment, goods and other materials so lost, damaged, destroyed or reduced in size or amount.
B. In no event shall seller be liable for any consequential, incidental, indirect, special or contingent damages arising out of or relating to this contract.
8. Delays: neither party shall be liable for any delay or failure in the performance of its obligations under this contract if such performance is delayed or prevented due
To a circumstance of force majeure. For the purposes of this contract, the term "force majeure" means acts of god; strikes, lockouts or other industrial disturbances; wars, whether declared or undeclared; blockages; insurrections; riots; earthquakes; typhoons; hurricanes; floods; epidemics; fires; explosions; serious breakage or accidents to machinery or equipment; failure of transportation or usual sources of supple; acts or
Restraints of governmental authority, whether legitimate or not; and, without being limited by the above, any other cause, occurrence or failure which is not within the reasonable control of the party affected. Upon the occurrence of a circumstance of force majeure, the party affected shall immediately notify the other party of the nature, anticipated duration and probable effect thereof in reasonable detail and take every reasonable step to resume its performance with the least possible delay; provided, however, that nothing herein shall be deemed to require either party to settle any strike, lockout or other industrial disturbance on terms which in its opinion are not satisfactory.
9. Indemnity
A. Buyer shall indemnify, save harmless and defend seller, its subsidiaries, its affiliated companies and the directors, officers, employees, agents and representatives of any of the foregoing from and against any and all suits, actions, legal proceedings, claims, demands, damages, cost and expenses of whatsoever kind or character, including, without limitation, attorneys' fees and expenses, arising out of or by reason of any liability or obligation in any manner caused or occasioned by or claimed to be caused or occasioned by, any act, omission, fault or negligence of buyer or anyone acting on its behalf, including, without limitation, subcontractors, their subcontractors and the directors, officers, employees, agents and representatives of any of the foregoing, in connection with or incident to this contract or with respect to any work performed hereunder except where caused by the concurrent negligence of seller, its directors, officers, employees, agents and representatives (other than buyer or anyone acting on its behalf), in which event buyer's liability for the payment of damages, cost and expenses hereunder shall be reduced in proportion to the negligence of seller, its directors, officers, employees, agents and representatives (other than buyer or anyone acting on its behalf) on the basis of comparative negligence or fault.
B. Without limiting the foregoing, buyer shall indemnify, save harmless and defend seller, its subsidiaries, its affiliated companies and the directors, officers, employees, agents and representatives of any of the foregoing from and against any and all suits, actions, legal proceedings, claims, demands, damages, costs and expenses of whatsoever kind or character, including, without limitation, attorneys' fees and expenses, arising out of or by reason of any injuries (including death) or damage to any person or entity employed by or acting on buyer's behalf in connection with or incident to this contract or with respect to any work performed hereunder except where caused by the concurrent negligence of seller, its directors, officers, employees, agents and representatives (other than buyer or anyone acting on its behalf), in which
event buyer's liability for the payment of damages, costs and expenses hereunder shall be reduced in proportion to the negligence of seller, its directors, officers, employees, agents and representatives (other than buyer or anyone acting on its behalf) on the basis of comparative negligence or fault.
C. Buyer's obligations under this article 9 shall continue without limitation as to time, notwithstanding the extinguishment of other rights and duties under this contract by completion, contract termination or cancellation or any other manner.
Laws and regulations: Buyer shall comply with all applicable federal, state and local laws, ordinances and regulations, whether existing or hereinafter enacted, in connection with its performance of this contract
Notices: All notices under this contract shall be in writing and may be served by either party on the other by hand, facsimile, telex, telegram, cablegram or regular mail addressed to the respective party at the address indicated in this contract. The address of either party may be changed at any time by written notice of such change to the other party. Any such notice shall be effective upon delivery to the intended recipient or seven (7) days after being placed in the ordinary course of the mail, postage paid and properly addressed, whichever occurs first.
Waiver: no waiver of any provision of this contract shall constitute a waiver of any other provision of this contract or of the same or any other provision in any other instance. No waiver shall be effective except in writing signed by the authorized representatives of the parties hereto.
Entire contract: this contract contains the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all negotiations, proposals, agreements and understandings, whether written or oral, with respect thereto. No amendment, variance or change in the provisions of this contract shall be effective except in writing signed by the authorized representatives of the parties hereto.
Applicable law: this contract shall be governed by and construed in accordance with the laws of the State of Washington without reference to principles regarding conflicts of laws.
|
