TERMS AND CONDITIONS OF SALE
(Attachment to Scope of Work and Purchase Order for the Purchase of Equipment)

  1. Scope; Acceptance; Agreement. These Terms and Conditions of Sale (“Terms and Conditions”) apply to the purchase of Equipment from Cherry’s Industrial Equipment Corp., an Illinois corporation (“Cherry’s” or “Seller”). In these Terms and Conditions, “Equipment” means the equipment as more particularly described on the scope of work issued by Seller to the purchaser of the Equipment (“Buyer”) and related purchase order accepted in writing by Seller (the scope of work, related purchase order, change order and/or related specifications or drawings, if any, are collectively referred to as the, “Order”).  These Terms and Conditions apply to and are deemed to be incorporated in any Order for the sale and purchase of the Equipment and shall supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms.  These Terms and Conditions represent the final and complete understanding of the parties and may be amended only by written agreement signed by both parties. Any proposal for additional or different terms or any attempt by Buyer to vary in any degree any of the provisions of these Terms and Conditions is hereby deemed material and is objected to and rejected.  No terms of any document or form submitted by Buyer shall be effective to alter or add to the provisions contained in these Terms and Conditions.  Fulfilment of an Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify these Terms and Conditions. 
  2. Price Quotes. Price quotes for Equipment provided by Cherry’s that expressly provide or otherwise state “firm quote”, remain valid for five (5) days unless otherwise specified. All other price quotes are estimates and may be increased without notice in the event of increases in the Seller’s costs. No discounts shall be taken except as specifically allowed in writing by Seller.
  3. Prices; Taxes. Buyer shall purchase the Equipment from Seller at the prices (the “Prices”) set forth in the Order. Prices do not include any sales, use, excise, privilege, or other taxes or assessments now or hereafter imposed or levied by or under the authority of any Federal, State, or local law, rule, or regulation concerning the Equipment sold hereunder or the manufacture or sale thereof. If Cherry’s pays any such taxes or assessments, Buyer shall, upon demand, immediately reimburse Cherry’s for such amounts.
  4. Terms of Payment. Invoices are due 30 days from Buyer’s receipt of invoice. Buyer shall make all payments hereunder by wire transfer/check and in US dollars.  Seller may impose interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Equipment if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  5. Testing/Acceptance. Cherry’s shall coordinate and conduct a Factory Acceptance Test with Buyer as set forth in the scope of work issued by Cherry’s.  The Equipment will be deemed “Accepted” by Buyer following such testing and final sign-off by the Buyer as set forth in the scope of work. 
  6. Risk of Loss. Following Buyer’s “Acceptance” of the Equipment, Cherry’s shall prepare the Equipment for packaging and final shipping to Buyer. All risk of loss or damage to Equipment shall pass to Buyer upon delivery thereof to Buyer, to its designated agent, or to a carrier for delivery to Buyer, whichever occurs first. Unless otherwise agreed by Cherry in writing, all shipments shall be F.O.B. point of manufacture.
  7. All shipping and delivery dates are estimates and are based upon prompt receipt of all necessary information from Buyer. Cherry shall not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays in delivery.
  8. Installation. Installation is the responsibility of the Buyer unless specified.
  9. Confidential Information; Intellectual Property. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms and Conditions and/or Order is confidential, solely for the use of performing pursuant to the terms of the Order and these Terms and Conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Seller shall retain all right, title and interest in and to, and possession of, any know-how, technical information, drawings, specifications or documents, ideas, concepts, methods, processes, techniques and inventions developed or created by or on behalf of Seller and supplied by Seller under any Order.
  10. Warranties.
    • (a). Cherry’s Industrial Equipment Corp. warrants this product to be free from defects in material, equipment component failure, or workmanship for a period of one (1) years of single shift usage from date of shipment, providing claim is made promptly within that time period. This warranty shall not cover failure or defective operation caused by misuse, misapplication, negligence or accident, exceeding recommended capacities, failure to perform required maintenance or altering or repairing, unless alteration is authorized by Cherry’s Industrial Equipment Corporation; except as set forth herein, there are no other warranties, express or implied, including the warranties of merchantability and fitness for a particular purpose, all of which are hereby excluded. THESE ARE CHERRY'S ONLY WARRANTIES. CHERRY MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY CHERRY AND EXCLUDED.
    • (b). Cherry’s Industrial Equipment Corp’s obligation under this warranty is limited to one (1) year labor and one (1) years parts of the replacement or repair of defective components. Major component failures may require shipping to Cherry’s Industrial Equipment Corp’s factory. The stated warranty does not cover standard components categorized as wear or maintenance parts. For a full list of components considered wear or maintenance parts please contact your Cherry’s Industrial Equipment representative.  Cherry’s Industrial Equipment Corp will provide immediate customer support by phone during regular business hours and if and when necessary, will provide a support technician on-site within 72 hours of a service request call for major failures that result in an equipment system shutdown. Service labor hours and parts shall be billable for non-warranty covered service and parts.     
    • (c). Seller’s liability, whether in contract or in tort, arising out of warranty, instructions or defects of any nature except for designated wear items, shall be limited to promptly repairing or replacing, as the Seller may elect and at Seller’s sole expense, any equipment or equipment part manufactured or provided by the Seller which is returned to the Seller. Labor to remove and to replace defective parts no longer covered by warranty is the Buyer’s responsibility. All return freight costs are Buyer’s responsibility except as warranted or necessary during the first three months of service unless other agreement is made. Repair or replacement shall be limited only to that equipment or those equipment parts which examination discloses to the Seller’s reasonable satisfaction are defective in material or workmanship or failed prematurely, provided the express warranty stated above has not expired before such equipment or equipment part is returned for repair or replacement. Buyers remedy, as provided in this paragraph, is expressly agreed to be exclusive. IN NO EVENT SHALL CHERRY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES.
  11. Limitation of Liability. Except as set forth in Section 10(c) as it relates to claims arising out of or under the express warranties provided hereunder which shall be expressly governed thereunder, Cherry’s liability to Buyer, or anyone claiming through or on behalf of Buyer, with respect to any other claim or loss arising out of the Equipment sold by Cherry’s to Buyer or alleged to have resulted from an act or omission of Cherry’s, whether negligent or otherwise, and whether in tort, contract, or otherwise, including failure to deliver, delay in delivery, or breach of warranty, shall be limited to an amount equal to the purchase price of the Equipment or part thereof with respect to which such liability is claimed or, where appropriate and at the option of Cherry’s, to replacement of the Equipment or part thereof. In no event shall Cherry’s be liable for any bodily injury, death, or property damage resulting from or in any way arising out of the Equipment or their sale, use, or manufacture. IN NO EVENT SHALL CHERRY BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES.
  12. Force Majeure. Neither Buyer nor Seller shall be liable for failures in performance, including delay or non-shipment, resulting from acts or events beyond its reasonable control. Such acts or events shall include, but shall not be limited to, acts of God, civil or military authority, civil disturbance, fire, strikes, lockouts or slowdowns, factory or labor conditions, inability to obtain necessary labor, global pandemics, materials or manufacturing facilities, delayed issuance of export control licenses, or other "force majeure" events beyond the reasonable control of the non-performing party.  In the event of such delay, the date of shipment shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay and otherwise for a reasonable time.
  13. Termination. Subject to the terms hereof, either Seller or Buyer may terminate the Order if the other party breaches any term hereof or thereof and fails to cure such breach within 30 days of written notice specifying the nature of the breach.  Unless otherwise agreed in writing by Seller, should Buyer cancel or otherwise terminate the Order for any reason other than an breach by Seller that remains uncured, Buyer shall be liable for the costs of all work done and materials purchased or provided up to the time of cancellation plus related overhead costs and loss of profit related to the Order.
  14. Waiver. Failure of Cherry’s at any time to require Buyer's performance of any obligation hereunder shall not affect Cherry's right to require performance of that obligation or of any other obligation of Buyer hereunder. No delay, or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.
  15. No Third-Party Beneficiaries. The Order and these Terms and Conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
  16. Assignment. These Terms and Conditions and any related Order shall not be assigned or transferred to any other person or entity by Buyer without prior written approval of Cherry’s.
  17. Notices. All notices, claims, demands, waivers shall be in writing and addressed to the parties at the addresses set forth on the Order between the parties.
  18. Governing Law. These Terms and Conditions and Order shall be governed by and interpreted in accordance with the substantive laws of the State of Illinois without regard to conflicts of law rules or principles. The Federal and State courts located in DuPage County shall have exclusive jurisdiction to resolve any dispute hereunder. Each party hereby consents to submit to the personal jurisdiction of such court. Cherry’s acknowledges that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
  19. Severability. If any term or provision of these Terms and Conditions or Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
  20. Survival. Any provisions, which, by their nature are intended to survive the termination or expiration of these Terms and Conditions or Order, will survive its termination or expiration, including any warranties.

Thank you for considering Cherry’s Industrial Equipment for your material handling requirements.