EARTHWORKS MACHINERY COMPANY
SALES TERMS AND CONDITIONS ™

1. Proposals to furnish new products, whether in existence or to be manufactured are based on prices, freight rates and other costs factors prevailing at time of shipment. Prices of new products are subject to increase if increased by the manufacturer prior to acceptance of order by Seller. Freight costs, if any, included in proposal are subject to correction if shipping tariffs change prior to shipment. Other cost factors, if any, are subject to increase if increased before acceptance of order by Seller.
   
   
2. Delivery estimates are approximate and are based on information from the manufacturer as of the proposal date or the most recent date confirmed. Seller does not accept any liability for delay in manufacture, shipment or delivery.
   
   
3. Proposals relating to specific existing products are made subject to prior sale or commitment unless otherwise specifically stated herein.
   
   
4. Proposals and sales of used products are “as is” unless otherwise specifically stated herein.
   
   
5. Acceptance of Seller's proposal by the buyer followed by written acknowledgment by one of Seller's authorized employees constitutes the entire agreement between the parties, and supersedes and rescinds all prior agreements relating to the subject matter hereof. No amendment, modification, or supplement to this agreement shall be binding upon Seller unless it is in writing signed by one of Seller's authorized employees.
   
   
6. An order, once accepted and acknowledged, may not be canceled without Seller's prior written consent, and buyer agrees to pay any cancellation charge assessed against Seller by the manufacturer and Seller's accumulated direct costs as a result of the cancellation.
   
   
7. Buyer accepts responsibility for any purchased product when it is shipped from the shipping point specified in the order whether to buyer, carrier, or bailee, whichever occurs first. Buyer authorizes Seller to execute on buyers behalf shippers or carriers bill of lading or contract for carriage of product related to shipment.
   
   
8. LIMITED WARRANTY. The only warranty extended by Seller is a warranty of title for the product sold. Buyer may benefit from a standard warranty extended by the manufacturer of product sold. The buyer shall look to Seller only for title warranty protection and shall look solely to the manufacturer for any other warranty protection. Notwithstanding the foregoing, if, for whatever reason, Seller is held liable, Sellers sole and exclusive liability, and buyers exclusive remedies are that, within the first six months from the time of delivery/f.o.b. point, Seller, at its sole option, will repair or replace any parts or workmanship found to be defective (excluding labor cost necessary to repair or replace any part), or, if Seller determines that repair or replacement is impracticable, return of product to Seller for a commercially reasonable fair market value to be determined by Seller, except, Seller shall not be liable hereunder, if examination by Seller discloses that the parts were either altered in any manner after shipment by Seller, or the defect was caused by buyer or any third party’s misuse, neglect, improper installation, unauthorized attempts to repair, or any other cause beyond its intended use, or by accident, fire or other hazard. The foregoing shall be the buyer's sole and exclusive remedy against Seller whether in contract, tort or otherwise. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, NOR OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY IS MADE BY SELLER. It is understood and agreed that the particular qualities and characteristics which are not being warranted by Seller include each and every operating characteristic and quality of the product, and that the purchase price is based on the buyer relying solely on the manufacturers warranty protection, if any. Any description of the product being sold is for identification only.
   
   
9. EXCEPT AS PROVIDED EXPRESSLY IN SECTION 8 HEREOF, SELLER SHALL NOT BE LIABLE TO BUYER, TO BUYERS CUSTOMERS OR TO ANY OTHER PERSON FOR INJURIES TO PERSONS OR PROPERTY, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONTINGENT, CONSEQUENTIAL OR COMMERCIAL DAMAGES OR ANY OTHER DAMAGES. EXCEPT AS STATED HEREIN, SELLER'S LIABILITY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT SOLD, WHETHER LIABILITY RESULTS FROM BREACH OF WARRANTY, CONTRACT, TORT OR ANY OTHER CAUSE WHATSOEVER.
   
   
10. No action against Seller for breach of this contract or any other obligation of Seller herein can be commenced after more than one year after the same has occurred.
    
    
11. Payment of the purchase price is due and payable per the terms shown on this agreement unless other specific terms are arranged and approved. Full payment is due within 30 days after receipt of signed contract, or receipt of deposit, or prior to shipment, whichever comes first. Seller has no obligation to hold equipment off the market on Buyers behalf for longer than 30 days without full payment unless other specific terms are arranged and approved. DEPOSITS ARE NONREFUNDABLE unless Seller does not deliver equipment according to terms & conditions – in which case payments received will be refunded. If a form of deferred payment plan is used, Buyer agrees to execute documents required and to furnish financial statements or information requested. Terms for deferred payment are subject to approval of Seller. Buyer represents it is solvent.
    
    
12. All payments and sums due Seller shall be payable on demand and are subject to service and handling fees of 18% per annum after due.
    
    
13. Title to the within described equipment shall remain in Seller until such time as payment has been made in full. Buyer agrees that Seller shall have a security interest in the equipment to secure payment in accordance with the payment terms set forth herein, and that Seller shall have all the rights of a secured party under the Uniform Commercial Code as enacted in the State of California, including the right to repossess the equipment and to obtain a deficiency judgment, in the event these payment terms are not met. Buyer agrees to execute financing statements if Seller so requires.
    
    
14. To the extent any provision of this agreement is not enforceable under applicable law, such provision shall be deemed null and void and shall have no effect on the remaining portions of this agreement.
    
    
15. Seller shall not be liable for the cost of any charges relating to inspections, testing and/or modifications necessary to conform to specific codes.
    
    
16. Buyer is responsible for all protective guards where equipment is operating. Buyer accepts responsibility for interpreting Local, State and Federal regulations regarding protective guards, and the installation and consistent use of guards wherever deemed necessary. Buyer indemnifies seller of all liability arising from machinery with inadequate protective guards.
    
    
17. Any controversy or dispute arising out of this agreement, the interpretation of any of the provisions hereof, or the action or inaction of any party hereto shall be submitted to arbitration in Placer County, California, under the applicable rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), notwithstanding any other choice of law provision in this agreement. All statutes of limitations or any waivers contained herein which would otherwise be applicable shall apply to any arbitration proceeding under this agreement. The arbitrator's authority to grant remedies shall be limited to those remedies that could be granted or awarded by a judge of the Superior Court of the State of California applying California law to the claims asserted. The arbitrator shall prepare a written decision for the award, including factual findings and the reasons that form the basis of the arbitrator's decision. The arbitration decision shall be mailed to the parties no later than thirty (30) days after the close of the arbitration hearing. The arbitrator shall not have the power to commit errors of law, and the award of the arbitrator shall be vacated or corrected for any such error. Judgment upon the award rendered may be entered in any court having jurisdiction.
    
    
18. This agreement shall be governed by and construed in accordance with the substantive laws of the State of California without giving effect to the rules of conflicts of law. Venue of any action arising out of or in connection with this agreement shall be Placer County, California.