TERMS AND CONDITIONS OF THIS SALE APPEAR BELOW. PURCHASER ACCEPTS THE TERMS AND CONDITIONS BY MAKING ANY PAYMENT IN RESPECT OF THIS INVOICE OR BY FAILING TO PROVIDE WRITTEN NOTICE TO MFP WITHIN 5 DAYS OF RECEIPT OF THIS INVOICE THAT THESE TERMS AND CONDITIONS ARE UNACCEPTABLE. CONFLICTING TERMS AND CONDITIONS OF ANY ORDER SUBMITTED BY PURCHASER IN RESPECT OF THIS SALE ARE VOID. ALL GOODS ARE SOLD WITHOUT WARRANTIES OF ANY KIND EXCEPT AS EXPRESSLY STATED BELOW.
1. PURCHASE AND SALE. MFP agrees to sell to a purchaser (“Purchaser”) and Purchaser agrees to purchase from MFP, the goods (“Equipment”) described on the invoice, at the purchase price (“Purchase Price”) set forth on the invoice. The Purchase Price, applicable taxes and other costs listed in Section 2 below are due and payable on receipt of the invoice unless otherwise stated on the reverse. Failure by Purchaser to pay the Purchase Price or any other amount when due shall result in a late charge, payable upon demand, calculated daily at an interest rate of 2% per month (24% per annum) or, if such rate shall exceed the maximum rate of interest allowed by law, then at such maximum rate.
2. TAXES, DELIVERY, INSTALLATION AND INSURANCE COSTS: The Purchase Price is F.O.B. MFP’s loading dock or as otherwise specified on the invoice. All delivery, rigging, installation and insurance costs shall be paid promptly by Purchaser in addition to the Purchase Price. Purchaser further agrees to pay all taxes, however designated, levied or based on the Purchase Price, this Agreement or the Equipment except taxes based on MFP’s net income. If the purchase is for resale, a duly executed resale certificate shall be delivered to MFP. If the Equipment or any part thereof is IBM product, Purchaser agrees to provide MFP with written notice of the installation date, if different from the date of sale.
3. RISK OF LOSS: The risk of loss or damage to the Equipment shall be borne by the Purchaser after delivery of the Equipment is made available for loading and delivery at MFP’s loading dock.
4. TITLE AND SECURITY INTEREST: MFP warrants and represents that it has good title to the Equipment, other than software, free and clear of all liens and encumbrances of whatever kind and description other than the interest of MFP or, in the case of new Equipment, Vendor. Title to the Equipment, other than software, remains vested in MFP until the Purchase Price is paid in full. In addition, Purchaser grants to MFP a purchase money security interest in the Equipment in the amount of the Purchase Price until paid and consents to the filing and recording of this document in accordance with the laws of any applicable jurisdiction prior to payment in full of the Purchase Price. Purchaser will execute any other financing documents in relation to the purchase of the Equipment which MFP may reasonably request. All software is provided to the Purchaser pursuant to a license agreement as set out in Section 6 below, and in no event does Purchaser acquire title to or ownership of the software.
5. LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES: PURCHASER ACKNOWLEDGES THAT MFP IS NOT THE MANUFACTURER OF THE EQUIPMENT OR THE AGENT OF THE MANUFACTURER. MFP SHALL HAVE NO LIABILITY TO PURCHASER FOR ANY CLAIM, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN, BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH, ARISING IN STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. EXCEPT AS EXPRESSLY CONTAINED HEREIN, THE EQUIPMENT IS SOLD BY MFP “AS IS” AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND PROVIDED BY MFP INCLUDING THOSE OF MERCHANTABILITY, DURABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE EQUIPMENT, OR PATENT, TRADEMARK AND COPYRIGHT INFRINGEMENT AND MFP EXPRESSLY DISCLAIMS THE SAME. If the Equipment or any part thereof is new equipment, Purchaser acknowledges receipt of product warranty information provided by the manufacturer. Purchaser further acknowledges that its sole remedy for the breach of such warranty shall be against the manufacturer and not against MFP, and that any such breach shall not affect the obligations of the Purchaser to MFP hereunder.
6. SOFTWARE LICENSE: Purchaser understands and acknowledges that all computer software provided to Purchaser as part of the Equipment is provided subject to a software license agreement. Such license will be packaged together with the software or otherwise provided to Purchaser. Purchaser agrees that it is bound by the terms of any software license agreement and that it will execute any such agreement upon request.
7. MFP’S RIGHT TO REPOSSESS: In the event Purchaser refuses or is unable to accept delivery of the Equipment, or fails to pay for the Equipment when due then MFP shall have the right (a) to immediate possession of the Equipment at Purchaser’s expense; (b) to re-sell or lease the Equipment; and (c) to avail itself of any legal remedy. In addition to any other right or remedy which it may have at law or in equity, MFP shall be entitled to retain all monies paid hereunder as liquidated damages, not as a penalty.
8. FORCE MAJEURE: If MFP is unable to deliver the Equipment due to an act of God or any other cause beyond its control, MFP shall not be liable for such failure during the period of and to the extent of the disability.
9. APPLICABLE LAW: This transaction .shall be governed by the laws of the State of New York. These terms and conditions constitute the entire agreement between the Purchaser and MFP with respect to the purchase and sale of the Equipment listed on the reverse and no statement not contained therein shall be binding upon MFP as a warranty or otherwise except if contained in a written agreement signed by both parties. The terms of any written agreement signed by both parties shall supersede the terms and conditions herein to the extent of any conflict. THE FOREGOING TERMS AND CONDITIONS SHALL PREVAIL NOTWITHSTANDING ANY VARIANCE WITH THE TERMS AND CONDITIONS OF ANY ORDER SUBMITTED BY THE PURCHASER IN RESPECT OF THE EQUIPMENT. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this purchase and sale.
10. ASSIGNMENT : These terms and conditions shall be binding upon and inure to the benefit of the parties and their respective successors and assigns except that the Purchaser may not assign its rights or obligations without the prior written consent of MFP.