Terms and Conditions of the Sales Agreement

• Shandong Panshi Heavy Industry Machinery Co. is herein referred to as the “Company”. These terms and conditions include: the general terms and conditions applicable to this Agreement; the specific terms and conditions applicable to the lease of equipment under this Agreement; and the specific terms and conditions applicable to the purchase of equipment under this Agreement.
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2) Payments. Payments due from Customer under this Agreement shall not be subject to abatement, recoupment, defense, claim, counterclaim, deduction, set-off or any other adjustment for any reason whatsoever, including, but not limited to, any amounts payable or purported to be payable as a result of any past, present, or future claim that Customer may have against the Company or any other person or entity.

3) Acceptance. Written acceptance, use or retention of the Equipment, or payment of the Purchase Price, shall be conclusive evidence of Customer’s agreement to be bound by the terms and conditions contained in this Agreement. In no event shall the shipment of equipment under this Agreement constitute acceptance by the Company of any terms and conditions in addition to or different from those contained herein.

4) Breach of Contract. Any one or more of the following shall constitute an event of default under this Agreement: (a) Customer fails to make any payment due and payable under this Agreement;

(b) The Customer fails at any time to purchase or maintain any insurance required under this Agreement;

(c) The Customer becoming insolvent (i.e. unable to pay its debts as they fall due);

(d) the termination, cessation or liquidation of Client’s business

(e) Any representation, warranty or statement of material fact made or given by or on behalf of the Client to the Company or the Company’s representatives (including any document, instrument or other document) is false or misleading in any material respect;

(f) the Customer is in breach of any term, condition or undertaking contained in this Agreement.

5) Remedies upon Default. Upon the occurrence of an Event of Default as described above, all of Customer’s rights shall cease, and at any time thereafter, the Company may, at its option, with or without notice, declare all sums of money outstanding hereunder and all other sums of money due to the Company hereunder to be immediately due and payable, and may proceed to enforce the payment of such obligations, and to exercise any and all rights and remedies provided in this Agreement, any statute or law, in equity or in bankruptcy or insolvency proceedings, including, without limitation, the following rights and remedies:  

(a) To bring an action in court to compel Customer’s performance or to recover from Customer any and all damages and costs suffered by Company, including, but not limited to, reasonable attorneys’ fees and collection agency fees;

(b) Terminate Customer’s rights under this Agreement.

6) Use of Equipment.  Customer’s agreement to use the Equipment shall be construed as Customer’s acknowledgment that the Equipment is in good condition and repair when delivered to Customer by Company. Customer agrees to install, maintain and use the Equipment in a safe and proper manner and in compliance with applicable safety guidelines and all relevant laws and regulations.

• Maintenance of Equipment. Customer shall at all times, at its own expense, maintain the Equipment in good, safe and efficient working order, state of repair and condition.

• Unless otherwise expressly stated in these terms and conditions and in the order acknowledgment, company makes no warranty, express or implied, with respect to the equipment, nor does it warrant merchantability or fitness for any particular purpose. In no event shall Company be liable for any consequential, special or indirect damages.

• Customer agrees to fully protect, defend, indemnify and hold Company harmless from and against all actions, suits, proceedings, claims, costs, damages, liens, debts and expenses (including reasonable attorneys’ fees) which may be brought or asserted in any way against Company, or claimed to be the result of the manufacture, possession, installation, maintenance, sale, disposal, use or misuse of the equipment hereunder, except for actions, claims, costs, damages, debts and expenses arising solely from the negligence of Company. The Client shall fully indemnify and hold harmless the Company to the fullest extent permitted by law. Customer agrees and understands that the services and/or equipment provided by Company under this Agreement are good, valuable and valid consideration for Customer’s indemnification obligations under this Agreement. Customer waives any and all immunity from any action, claim or suit for indemnification or contribution by Company arising out of any law, statute, rule or regulation.

• Customer will, at its sole cost and expense, provide property insurance for the full replacement value of the Equipment and liability insurance for any death, injury or damage resulting from the installation, use or removal of the Equipment. A certificate of insurance or other evidence satisfactory to Company, including the original or certified copy of the actual policy, showing the existence of insurance in accordance with the terms of this Agreement and the terms, conditions, and payments, shall be furnished to Company immediately upon request.

• Notice of Accident. Customer agrees to notify Company immediately of any accident involving the Equipment and resulting in injury, death or property damage. Customer understands that the time following an accident to promptly investigate and segregate physical evidence (including taking photographs and other measures to prevent the loss of physical evidence) is of the utmost importance, and Customer will cooperate unconditionally with Company to limit the extent of damage caused by the accident. Client is deemed to have knowledge of the Accident from the time the Accident is made known to Client, its employees, agents and representatives, including the Owner (if different from Client) and contractors, subcontractors, suppliers or vendors reporting to Client.

• Client may not assign this Agreement by its own act or by operation of any law without Company’s prior written consent.

13) Non-Waiver. The failure of the Company to insist at any time on strict performance by the Customer of any of the terms and conditions of this Agreement shall not be construed as a waiver of the Company’s right to require strict performance by the Customer of this Agreement. An express waiver of a provision of this Agreement shall not be deemed a waiver of any other provision of this Agreement.

14) Notices.  Notices or deliveries made by either party to the other shall be deemed to have been validly given, received or delivered when (a) in writing and delivered in person; and (b) mailed by certified mail, return receipt requested, to the intended recipient at the proper address set forth on the Order Acknowledgement.

15) Notices.  A notice or delivery by either party to the other shall be deemed to have been validly given, received or delivered if (a) delivered in writing in person; and (b) mailed by certified mail, return receipt requested, to the intended recipient at the proper address set forth on the Order Acknowledgment.

16) Force Majeure. The Company shall not be liable for any delay or failure to perform this Agreement due to any unforeseen event beyond the Company’s control, including acts of God, wars, mobilizations, insurrections, rebellions, civil commotions, riots, acts of extremism or public enemy, sabotage, labor disputes, lockouts, strikes, job actions, explosions, earthquakes, fires, floods, weather conditions, accidents, droughts , equipment failure (other than equipment furnished under this Agreement), power outages, unavailability of suitable or sufficient labor or materials, carrier delays, embargoes, laws, ordinances, rules or regulations, whether valid or invalid, or other causes beyond its reasonable control. Customer shall be obligated to purchase or lease, as applicable, such portion of the Goods at a later date if the Goods are manufactured to Customer’s specifications and are not of a size or grade customarily used or manufactured by Company for the portion of the Goods that Company is unable to deliver due to such causes beyond its control.

17) Complete Agreement. This Agreement, together with the Safety Guide, which is hereby incorporated by reference, constitutes the entire contract between the parties, and the parties acknowledge that there are no other understandings, representations, warranties, undertakings, verbal or otherwise, with respect to this Agreement or the Equipment, which are not expressly incorporated herein by reference or for which additional terms are signed by the parties and attached hereto. No waiver, alteration or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of both parties. If this Agreement or any provision hereof is held to be invalid, illegal or unenforceable in any respect or in any jurisdiction, the validity, legality and enforceability of this Agreement in other respects and in other jurisdictions shall not be impaired or affected in any way. This Agreement shall be binding on the parties hereto and their respective successors and assigns.

Additional Terms and Conditions

• Company hereby sells to Customer the Equipment set forth on the reverse side of this Agreement in accordance with the terms and conditions of this Agreement.

• Selling Price. Unless otherwise specified in writing, the Equipment is sold at the branch price in effect at the time of shipment, plus all applicable local, state and federal taxes. (Unless otherwise specified, prices indicated are F.O.B. the location of the company listed on the back of this contract).

• Purchase Payment Terms. Payment is due within 30 days from date of invoice. All past due accounts shall be subject to a service charge at the rate of 1-1/2% per month or the maximum rate allowed by law, whichever is less.

4) Ownership of Purchased Equipment. Regardless of shipping arrangements, title and risk of loss shall pass to Customer upon delivery of the goods to the carrier and the carrier being located at the location of the company indicated on the back of the goods. Notwithstanding the foregoing, Customer hereby grants to Company a purchase money security interest in the equipment and agrees to execute in favor of Company within 20 days of the date title passes to Customer any financing statement necessary to secure the security interest retained by Company.