Louisville Dryer Company
Standard Terms & Conditions
Indemnification. Customer shall defend, indemnify and hold Louisville Dryer Company (“LDC”) harmless from all claims, demands, suits, judgments, actions, costs, expenses (including reasonable attorneys’ fees) and liabilities of any kind (including those alleging LDC’s own negligence except to the extent prohibited by applicable law) which arise from, relate to, or are connected with the subject matter of the order or performance thereof to the fullest extent permitting by law.
Disclaimer of Warranties. Except as expressly stated in a contract signed by LDC: (1) LDC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ON ANY OF THE EQUIPMENT, GOODS OR SERVICES (INCLUDING WITHOUT LIMITATION ANY MANUALS, INSTRUCTIONS, SPECIFICATIONS OR DRAWINGS RELATED THERETO) SOLD PURSUANT TO THIS ORDER AND SPECIFICALLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; (2) If any warranty is agreed upon in writing, , there are no other warranties which extend beyond that expressed warranty; (3) LDC does not guarantee or warrant a particular result.
Limitation of Remedies. Without limiting the foregoing, if any warranty (whether arising from statute, common law, custom, contract or otherwise) exists with respect to the equipment, goods or services by written agreement of LDC, the remedy of repair or replacement of the defective warranted equipment, goods or services shall be the exclusive remedy available to Customer or any other person. In the event that repair or replacement is an ineffective remedy, Customer’s sole and exclusive additional remedy is the right to recover an amount not to exceed the amount paid to LDC for the subject equipment, goods or services in dispute. Except for repair, replacement or refund, LDC shall not be liable for any loss, injury, expense or damage caused by or resulting from the equipment, goods or services sold, or the performance thereof, whether caused by defect, failure or malfunction and whether the claim of such damages is based on warranty, contract, negligence or any other theory.
Limitation of Damages. LDC SHALL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION, LOSS OF SALES, LOSS OF PROFITS OR LOSS OF REVENUE (WHETHER OR NOT SUCH DAMAGES ARE CLASSIFIED AS DIRECT DAMAGES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES OF ANY SORT, WHETHER ANY SUCH DAMAGES ARISE UNDER WARRANTY, GUARANTEE, CONTRACT, TORT OR ANY OTHER CAUSE OR COMBINATION OF CAUSES. Without expanding the foregoing limitation, under no circumstances shall LDC be liable to Customer or any of its employees, affiliates or agents by reason of the sale in an amount exceeding the greater of the amount owed to LDC under the subject purchase order or LDC’s applicable insurance paid for such loss. THE FOREGOING PROVISIONS SHALL (I) PREVAIL OVER ANY INCONSISTENT PROVISIONS ELSEWHERE IN THE ORDER, (II) SURVIVE ANY TERMINATION OF THIS AGREEMENT AND SHALL CONTINUE TO BIND THE PARTIES, AND (III) MAY BE CHANGED ONLY BY THE JOINT WRITTEN CONSENT OF BOTH PARTIES.
Special Pricing Circumstances. The contract price for the equipment or goods has been calculated based on the current prices for the raw material or component parts as of the date of the order. However, the market for the materials required for the equipment or goods is considered to be volatile, and sudden price increases could occur due to the market and/or due to tariffs. LDC will use its best efforts to obtain the best prices from suppliers in light of the anticipated delivery schedule, but should there be a significant increase in the price to LDC of any raw material, component part or good after any purchase order issued, LDC reserves the right to notify Customer of such increase and Customer agrees to be responsible for such increase upon such written notice from LDC. A change in price will be considered significant hereunder when the price of a material required for the order increases in cost to LDC by five percent (5%) or more between the date of the order to LDC by Customer and the date the material/part is ordered by LDC. Any claim by LDC for payment of a cost increase requires written notice to Customer stating the increased cost and the item/material(s) in question. LDC will provide documentation of such increase in the form of quotations, invoices or related documentation upon request. Any refusal by Customer to pay such increase upon such notice shall entitle LDC to terminate the order or any portion thereof at its option and recover all costs.
Payment and Financing Charge. If, in the judgment of LDC, the financial condition of Customer, at any time during the manufacturing period or at the time equipment or other goods are ready for shipment, does not justify the terms of payment specified, LDC may require full or partial payment in advance. If shipment is delayed by Customer, payments shall become due from the date when LDC is prepared to make shipment. If manufacture is delayed by Customer, payment shall be made based on the purchase price and percentage of completion. Equipment or other goods held for Customer after completion shall be at the risk and expense of Customer. If payment is not made in conformance with the stated terms, Customer shall pay a finance charge of 1.5% per month on the unpaid balance and all reasonable attorneys’ fees and costs of collection incurred by LDC
Security for Payment. To secure the payment of all amounts due LDC, LDC retains and Customer grants to LDC a security interest under the Uniform Commercial Code in the equipment and other goods purchased hereunder and agrees to execute and deliver to LDC such financing statements as LDC may reasonably request. If Customer fails to make payment in accordance with the stated terms, LDC may declare all obligations of Customer to LDC immediately due and payable and proceed to enforce payment and exercise all the rights and remedies provided by the Uniform Commercial Code.
Force Majeure. LDC shall not be liable for failure to perform or for delay in performance due to fire, flood, or other acts of God, strike, act or interference of any governmental authority (including the imposition of new tariffs or changes in law) or of Customer, war, riot, terrorist act, epidemic, pandemic, embargo, vehicle or vessel shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources and without increased prices or due to any other cause beyond its reasonable control making performance impossible or commercially impracticable. Such events may result in termination of the order or any portion thereof by LDC without liability, and in the event of delay in performance due to any such cause, the date of delivery and time for completion shall be postponed by such length of time as may be reasonably necessary.
Taxes. The price does not include any federal, state, provincial, or local sales/value added/use, or like taxes, duties, tariffs, or freight which may now or hereafter be applicable to, the order, which if applicable are the sole responsibility of the Customer. Customer agrees to pay all such taxes and other costs and to indemnify and hold harmless LDC, and LDC subcontractors and suppliers, from all such taxes and costs and any related interest, penalty, or other expense.
Delivery and Risk of Loss. Unless otherwise expressly stated a contract signed by LDC, delivery of new equipment or other goods, if any, will be made F.O.B. point of origin (2020 Incoterms). Customer shall be solely responsible for any freight, tariffs, customs, import duties, or other related obligations unless otherwise specifically agreed to by the parties in writing. Shipping dates are approximate and are based on prompt receipt of all necessary information from Customer. All used equipment and other used goods are sold where is. LDC shall not be liable for any indirect, incidental or consequential damages of any type for delay with respect to shipping, delivery, installation or start-up dates.
Design/Build Services. Any design services to be performed by LDC are an integral part of the manufacturing of the equipment which is the subject of the purchase. Customer acknowledges and agrees that (1) any design services provided by reason of the purchase do not include any activity or service which would constitute the practice of engineering under Chapter 322 of the Kentucky Revised Statutes or other applicable law; and (2) LDC has not held itself out to be a provider of professional engineering services.
Installation. Customer shall be solely responsible at its cost for the installation and erection of the equipment and other goods purchased. Although LDC may in some cases provide a serviceman, data, manuals, instructions, drawings or specifications to aid Customer with installation or start up, LDC assumes no responsibility for proper installation or support of the equipment or other goods when erected and disclaims any express or implied warranties with respect to such installation or support. Whether or not data, manuals, instructions, drawings or specifications are provided or a serviceman aids in the installation, Customer shall indemnify and hold LDC harmless from all expenses (including attorneys’ fees) claims, demands, suits, judgments, actions, costs and liabilities (including without limitation those alleging LDC’s own negligence except to the extent prohibited by applicable law) which may arise from, relate to or be connected with damage or personal injury arising out of the installation, erection, start up, or use of the equipment and other goods purchased (including any manuals, instructions, or drawings related thereto).
Acceptance of Order. An order does not become a binding contract upon LDC until signed by Customer and accepted by LDC at its home office in Louisville, Kentucky, or when LDC commences performance from such office. This agreement may be executed and delivered by exchange of electronic copies showing the signatures of Customer and LDC and those signatures need not be affixed to the same copy. The electronic copies showing the signatures will constitute originally signed copies of the same agreement requiring no further execution. When so accepted, or when LDC commences performance, the order will become a contract deemed to be made in Kentucky and governed by Kentucky law, including without limitation the Uniform Commercial Code as adopted by Kentucky and in effect on the date of this purchase where applicable. Acceptance of an order by LDC is expressly limited to the provisions contained herein. These terms and conditions supersede all terms and conditions described in any communication, proposal, purchase order or other document submitted by or to Customer.
Termination. The order may be terminated by Customer only upon written notice and payment to LDC of a cancellation fee in an amount equal to expenses already incurred and commitments made by LDC by reason of the order. Expenses include without limitation purchasing, manufacturing, administrative, shipping and travel expenses related to the order.
Dispute Resolution. Any and all disputes or claims relating to or arising out of this order shall be settled by arbitration conducted in accordance with the Uniform Arbitration Act, KRS Chapter 417, in force at the time of the execution and delivery of the order, with exclusive jurisdiction, venue and place of arbitration in Jefferson County, KY. The appropriate Kentucky court shall have the sole power, authority and jurisdiction to enforce this arbitration provision. This paragraph shall be construed as broadly as legally permissible to use arbitration for the purposes described. THE PARTIES SPECIFICALLY AND IRREVOCABLY WAIVE A JURY TRIAL OF ALL ISSUES AND MATTERS. Judgment upon the award entered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall use the substantive and procedural laws of Kentucky. The arbitration award shall be final and binding on the parties, and the parties agree to be bound thereby. Applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this order. Prior to initiation of arbitration, officers from both parties shall engage in good faith efforts to resolve any dispute. Either party may give the other party written notice of any dispute not resolved in the normal course of business. The receiving party shall submit to the other a written response. If the matter is not resolved within 30 days, either party may provide a notice of arbitration. Arbitration shall be conducted by a single arbitrator, who shall be selected by agreement of the parties. If the parties cannot agree on an arbitrator, the parties shall utilize the American Arbitration Association for the arbitration, and the Commercial Rules will apply. The arbitrator shall have no authority to award any indirect, incidental, consequential, punitive or exemplary damages in any determination. A party hereto who is required to enforce the processes of this arbitration provision shall be entitled to recover attorneys’ fees incurred in enforcing the requirements of this provision.
Severability and Reformation. It is the intent of the parties that these terms and conditions be enforced to the fullest extent permitted by any law and public policy applied in any jurisdiction in which enforcement is sought. The parties agree that the provisions hereof are severable and that if any particular provision or its application is adjudicated invalid or unenforceable, that provision shall be deemed reformed to the extent necessary to allow enforcement of that provision to the maximum extent permissible under applicable law. Any such reformation shall apply only that jurisdiction with respect to that particular provision.
Precedence and Modification. The proposal and these terms contain the entire agreement between Customer and LDC regarding any equipment, goods, services or other deliverables purchased or to be purchased and can only be modified or rescinded in writing signed by a representative of Customer and a duly authorized officer of LDC.
Cure Period. The period within which LDC may cure any default in the performance of any of LDC’s obligations hereunder shall be seven (7) days after receipt by LDC of written notice of default from Customer. However, a default which reasonably requires more than seven (7) days to cure shall be deemed cured if LDC in good faith within seven (7) days after receipt of notice commences performance requisite to cure same and thereafter continuously and with reasonable diligence proceeds to complete the performance required to cure such default within a commercially reasonable time.
Customer’s Delay or Failure to Accept Delivery. Any material delay by Customer in providing drawing approvals, payment in accordance with the order, or other information required (as applicable) shall impact the schedule by the amount of hours of the delay. Customer shall be responsible for the costs to LDC of any material delay in delivery of goods or the delay of services caused by Customer, its agents or subcontractors (to the extent the delay was not caused by LDC).If Customer fails to accept delivery of or otherwise take possession of any goods within 30 days from notification of readiness for shipment from LDC, LDC has the right and authority to charge Customer storage and transportation fees on a daily basis starting on day 31, to store the goods itself or through a third party, or to take any combination of such actions, all at Customer’s sole cost.