Terms and Conditions

The terms and conditions set forth below are supplemented or amended by the terms and conditions appearing on the face side of this Offer, continuation pages of this Offer or addenda attached to this Offer prior to execution, state the agreement which has been reached between seller and purchaser, and when signed by both the seller and purchaser constitute the complete, exclusive and mutually binding statement of such agreement. Similarly no additional, contradictory or different terms and conditions contained in any Purchase Order of Purchasers form, or contained in other communication from purchaser of seller that do not appear in writing on the face of this Offer, continuation pages of this Offer or addenda attached to this Offer prior to execution will have any for or effect and are hereby expressly rejected.

Warranties:

THE PARTIES ACKNOWLEDGE THAT SELLER IS NOT THE MANUFACTURER OF THE ITEMS PURCHASED UNDER THIS OFFER. EACH ITEM PURCHASED UNDER THIS OFFER SHALL BE COVERED SOLELY BY THE WARRANTY PROVIDED BY THE MANUFACTURER OF THE ITEM. NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY, (ii) FITNESS FOR A PARTICULAR PURPOSE OR (iii) NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE.

Shipment:

Unless otherwise specified, all items purchased under this Offer shall be shipped F.O.B. Manufacturers Plant and purchaser will pay all freight charges therefore. All items will be packed for shipment in manufacturer’s standard manner. Any deviation from such standard manner must be specified as part of this Offer. As used herein, shipment shall mean delivery to a carrier. Receipt shall mean delivery by a carrier to purchaser. Risk of loss in respect to the items purchased shall pass to purchaser upon shipment. Title to the items purchased shall pass to purchaser upon actual receipt by seller of payment in full.

Payment:

Payment for the items purchased shall be due as and when stated on the face of this Offer. In the event of shipment in installments, seller shall be relieved from making any further shipments in the event purchaser fails to make any required payments in accordance with the provisions of this Offer. It is expressly understood and agreed that the failure of equipment to operate or damage to equipment will not constitute reason for non-payment by purchaser. In the event of any delay in payment by purchaser beyond the terms of this Offer, purchaser will pay to Seller 1.5% interest per month on any unpaid balance. Payments of $5,000 or more via credit card are subject to a 2.5% convenience fee.

Attorneys Fees, Expenses and Costs:

Purchaser agrees that in the case seller shall commence any proceedings against the purchaser arising out of the sale of the items in this Offer, or the seller institutes any proceeding involving purchaser to collect any unpaid balance owed to seller under this Offer, purchaser will pay all expenses, costs and reasonable attorneys fees incurred by or imposed upon seller as the result of such proceeding, and such expense, costs and attorneys fees referred to herein shall be in addition to any balance owed to seller on this Offer.

Security Agreement:

Purchaser hereby grants to seller a security interest in and mortgages to seller the items purchased under this Offer and described on the face hereof, or any continuation thereof, and the proceeds of such items. Purchaser agrees to pay all filing fees incurred with the perfection of the security interest and cooperate in the execution of all forms necessary to perfect such security interest, which filing purchaser hereby specifically authorizes. Furthermore, purchaser authorizes seller to perfect such security interest and do all necessary filings without the signature of a purchaser on any documents filed if seller deems it advantageous to not obtain purchaser’s signature on any such documents. Purchaser also agrees not to remove the items purchased from the place to which they were delivered without permission of the seller. Purchaser will keep all items insured for the benefit of the seller against fire (including extended coverage), theft, and such other hazards as the seller may require in such form and such companies as the Seller shall approve, and, if requested will deliver the insurance policies to the seller. The security interest authorized by this agreement shall cover not only the items listed on the reverse side of this Offer or any continuation thereof, but also items subsequently purchased and acquired until such time as the purchaser’s account with H. Weiss/H. WEISS LLC./BHS Foodservice Solutions, LLC. has a zero balance. Purchaser specifically authorizes the removal from purchaser’s premise or premises by seller all the items purchased under this Offer, in the event that purchaser defaults in any of its obligations under this Offer. Moreover, purchaser warrants that purchaser will cooperate with seller in the removal of the items covered by this Offer, and purchaser further waives any requirement which might otherwise exist for seller to obtain a Replevin Order and purchaser also waives any requirement for seller to furnish a Replevin Bond. Failure of the purchaser to pay the aforesaid sums when due hereunder, or the insolvency, bankruptcy assignment for the benefit of creditors, or dissolution or termination of the existence of the purchaser, shall constitute a default under this agreement, and shall afford the seller all remedies of a secured party, including under the Uniform Commercial Code of the State New York. In addition to any other remedies available to it, the Seller, if it so elects, may repossess the equipment upon default and may retain as rental all payments made pursuant to this agreement.

Price:

THE PRICES QUOTED ARE SUBJECT TO CHANGES BY EACH MANUFACTURER LISTED IN THE QUOTING DOCUMENT. Each quotation is valid only for (a) the limited period of time set forth on the Quotation or, (b) if no such period is set forth, it is valid for 30 days from the date of transmittal of the quotation to buyer. Any buyer communication dated after the foregoing period purporting to accept the Terms will be considered as an offer by buyer to purchase the Services which offer is subject to acceptance by H. WEISS LLC.. H. WEISS LLC. reserves the right to reject any such offer. Notwithstanding anything in the quotation to the contrary, H. WEISS LLC. also reserves the right to withdraw the quotation at any time prior to receipt by H. WEISS LLC. of buyer’s full and unrestricted acceptance of all of the Terms.

Inspection:

Purchaser acknowledges that ten (10) days after receipt of the items will provide purchaser with a reasonable amount of time to inspect the items. Therefore, the items shall be subject to final inspection and acceptance by purchaser within ten (10) days after receipt by purchaser. Purchaser’s right of rejection hereunder shall be limited to non-conforming items. Upon inspection of the items within said ten (10) days, purchaser shall immediately notify seller in writing as to any non-conforming items that purchaser intends to reject and particularize in detail the reasons for such rejection. All items not properly rejected by purchaser within such ten (10) day period shall be deemed accepted by purchaser.

Return of Items:

If the purchaser desires to return items purchased under this Offer, such return and any refund resulting therefrom are dependent upon the manufacturer’s approval of the return and the acceptance by the manufacturer of the item or items intended to be returned. Purchaser must bear whatever charges are imposed upon the manufacturer or seller, including freight, as the result of such return.

Financial Responsibility:

Seller reserves the right of declining to make shipment whenever, for any reason, there is doubt as to purchaser’s financial responsibility and, in such event, seller shall not be liable for breach or non-performance of this Offer in whole or in part.

Taxes:

The price of items purchased does not include sales, use, excise or similar taxes, whether Federal, State or Local taxes, unless otherwise specifically provided in this Offer. The amount of any such taxes applicable to the items purchased shall be paid by purchaser in the same manner, and with the same effect as if originally included in the price or prices. If purchaser intends to claim a sales tax exemption for this purchase because the purchase relates to a capital improvement, or otherwise, such exemption must be claimed and supporting documentation must be given to seller before this Offer is signed. If supporting documentation is not presented prior to Offer signing, the purchaser accepts the responsibility for paying sales taxes to the seller on all purchased items.

Indemnification:

Purchaser shall indemnify, defend and hold seller harmless from and against any and all losses, damages, liabilities, claims, actions, suits, judgments, costs and/or expenses of whatever kind (including, without limitation, reasonable attorney’s fees), relating to, arising out of or resulting from the items and/or the use of the items; provided, however, that purchaser shall not be obligated to indemnify, defend or hold seller harmless with respect to any act or omission to act by seller.

Commercial Purposes:

The purchaser represents that the goods will be used for commercial or business purposes.

Miscellaneous:

his Offer constitutes the entire agreement between seller and purchaser, and supersedes all previous understandings and writings regarding the transactions contemplated by this Offer. Any amendment or modification of this Offer shall be void unless in writing and signed by seller. This Offer shall be governed by and construed under the laws of the State of New York. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Offer shall be brought and prosecuted in a court located in Buffalo, New York or the Western District of New York as is provided by law, and seller and purchaser consent to such jurisdiction. No delay or omission by seller in exercising any right or remedy hereunder shall be a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. All rights and remedies of seller are cumulative.

Returns, Damage:

All damage claims must be filed with carrier by customer. Returned merchandise is subject to a 25% restocking charge. All custom made merchandise is ineligible for return. Merchandise may not be returned without prior authorization.

For all service, H. WEISS LLC. will coordinate such service at customer’s request. However, customer agrees and acknowledges that, if H. WEISS LLC. coordinates such service at the customer’s request, the customer (not Elizabeth Contracting) is responsible for any payment that may be owed as a result of such visit. Further, although not in strict privity with the service provider, the customer consents to any suit against it by the service provider stemming from unpaid service work coordinated by H. Weiss LLC..