1. AGREEMENT OF SALE: Any terms and conditions of the order which are inconsistent with these terms and conditions are rejected and will not be binding on Caterpillar (Newberry) LLC ("Caterpillar") nor considered applicable to the sale or shipment of Products. No order shall be binding upon Caterpillar until and unless accepted by authorizing shipment of the Products set forth on the order. Caterpillar may refuse to accept any order for any cause which it may deem to be sufficient and shall not be liable for claims of any nature because of failure to accept an order. The sale of Products hereunder are for resale and use only in the United States (for Product designated as US Product) and Canada (for Product designated as Canadian Product). All Products shall be sold and delivered within the continental U.S. and for Products designated as Canadian Product Buyer shall be responsible for importation into Canada. In the event that Buyer exports Products outside the United States or Canada, Buyer expressly assumes any and all liability, including but not limited to importation, exportation and all other local laws and regulations, associated with any resale or use by Buyer or any of Buyer’s Purchasing Stores and Seller disclaims all responsibility for warranty for Products sold in violation of these restrictions. Product shall only be shipped to locations within the continental United States (i.e., no locations in Hawaii, Alaska or the United States Territories).
2. PRICES AND PAYMENT: Prices shall be those in effect on date of shipment or on such other date as Caterpillar may advise purchaser. Partial shipments may be employed against a single purchase order for various reasons (order change, short shipment, partial shipment, stockout, etc.), and partial shipments may be invoiced separately, resulting in more than one invoice against a single order. Invoices shall be payable in accordance with the payment terms set out therein.
3. TAXES: Caterpillar’s prices do not include any sales, transaction, turnover or similar taxes which Caterpillar may be required to pay in connection with filling any of orders. The amount of any applicable present or future such tax shall be paid as an additional charge, unless Caterpillar has been provided with a tax exemption certificate acceptable to the taxing authorities.
4. PATENTS: Caterpillar undertakes and agrees to defend at its own expense all suits, actions or proceedings brought for actual or alleged infringement of any letters patent brought solely because or on account of the sale or use of products to purchaser as sold and delivered by Caterpillar and as are constructed and used according to Caterpillar’s designs or specifications. Caterpillar further agrees to pay and discharge any and all judgments or decrees which may be rendered against the purchaser in any such suits, actions or proceedings, provided immediate notice of any such suit, action or proceeding is given Caterpillar, and provided further, Caterpillar is given complete charge and control of the defense of such suit, action or proceeding. Purchaser undertakes and agrees to defend at its own expense all suits, actions or proceedings brought against Caterpillar for actual or alleged infringement of any letters patent because or on account of any additions to, changes or adaptations made by purchaser or anyone on purchaser’s behalf or any use other than as specified by Caterpillar.
5. WARRANTIES: Product purchased under this Product Order shall be warranted as set forth in the then current warranty statement provided with such Products, as determined by Caterpillar from time to time.
TO THE FULLEST EXTENT PERMITTED BY LAW, CATERPILLAR SPECIFIALLY EXCLUDES ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED (WHETHER BY STATUTE OR OTHERWISE), INCLUDING WITHOUT LIMITATION, CONDITIONS, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO MERCHANTABILITY, VALUE, CONDITION, QUALITY, CAPACITY, FITNESS OR SUITABILITY FOR ANY PURPOSE OR USE BY BUYER OR ITS CUSTOMERS.
IN NO EVENT SHALL CATERPILLAR BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND. CATERPILLAR'S MAXIMUM LIABILITY ARISING OUT OF A PRODUCT SHALL NOT EXCEED THE AMOUNT PAID FOR SUCH PRODUCT.
6. DELAYS IN DELIVERY: Orders accepted are subject to strikes, labor disputes, lockouts, accidents, fires, delays in manufacture or in transportation or delivery of materials, floods, severe weather or other acts of God, embargoes, governmental actions, or any other cause beyond the reasonable control of Caterpillar, whether similar to, or different from, the causes above enumerated; and Caterpillar, shall not be liable to purchaser for any damages arising from Caterpillar’s delay in delivery or failure to deliver as a result of any such cause. In the event of a scarcity in any of its products for whatever cause, Caterpillar, may allocate their available supply as they see fit, regardless of the time of receipt or acceptance of orders or the quantity of orders on hand.
7. CLAIMS: Any claims against Caterpillar, for shortages by them in making shipments shall be made in writing to Caterpillar within fifteen (15) days after receipt of shipment. Caterpillar’s responsibility for shipments ceases upon transfer of risk of loss in accordance with Section 9 below, and any claims for shortages, delays or damages occurring thereafter shall be made by purchaser to the carrier. If purchaser believes that it has any other claim against Caterpillar with respect to transactions arising out of this Agreement or any other agreement, purchaser shall present such claim to Caterpillar in writing with full details as to the basis and amount thereof, within thirty (30) days after purchaser knows, or should have known, of such a claim. If purchaser fails to make any claim within the applicable time limits specified above, purchaser will not make said claim against Caterpillar and any such claim shall be barred.
8. CHANGES: Caterpillar may, at any time, without notice, make changes (whether in design, materials, the addition of improvements, or otherwise) in any Product, and may discontinue the manufacture of any Product, all in its sole discretion, without incurring any obligations of any kind as a result thereof, whether for failure to fill an order accepted by Caterpillar, or otherwise.
9. SHIPMENTS: Shipment dates are approximate. Shipments of Products under an order accepted by Caterpillar shall be subject to the approval by Caterpillar of purchaser’s financial condition at the time of shipment. Whether or not credit terms are specified elsewhere, Caterpillar may, at its option, condition shipments under any order accepted by Caterpillar upon receipt of satisfactory security or of cash before shipment. If, at purchaser’s request, shipment of Products on an order accepted by Caterpillar is delayed beyond the date Products are ready for shipment, Caterpillar may require immediate payment in full, and /or assess additional charges for storage and other expenses incident to such delay. Shipments shall be made by Caterpillar FOB Destination purchaser’s premises Incoterms 2010, unless otherwise specifically agreed in writing between Caterpillar and purchaser or the entity purchasing on purchaser's behalf. Legal title, beneficial ownership, risk of loss, and right to possession and control of Products passes from Caterpillar to purchaser upon delivery FOB (Incoterms 2010) at purchaser's premises unless otherwise agreed in writing between Caterpillar and purchaser.
10. CANCELLATION: In the absence of other written agreement between purchaser and Caterpillar governing cancellation, any order accepted by Caterpillar is not cancellable.
11. RETURNS - Caterpillar will not issue stock buy backs for Products or accessories. Purchaser is responsible for inspecting Product delivered by the carrier and noting any damage on the delivery receipt or refusing delivery. In limited instances, Caterpillar may accept Products that have concealed damage, pursuant to Caterpillar's then current Return Policy.