By purchasing or financing the equipment listed on page 1 (collectively, “Products”), Purchaser hereby agrees to the preceding and following terms (collectively, the “Terms”).
1. ACCEPTANCE. All sales are subject to availability of Products. Seller may accept or
reject this agreement and will not be required to give any reason for rejection. Seller rejects
any terms submitted by Purchaser not contained herein. Purchaser may issue a purchase
order for administrative purposes only, and any terms in any purchase order are rejected, not
binding on Seller, and are of no force.
2. TAXES. Purchaser agrees to pay all taxes, assessments, licenses, and governmental
charges of any kind resulting on account of Purchaser’s purchase, possession, or use of
3. FINANCING. If Purchaser finances Products, Seller’s acceptance of this agreement is
subject to the approval of Seller’s or Purchaser’s lender, and Purchaser shall sign any
security agreement and financing statement required by such lender.
4. ADDITIONAL DOCUMENTATION. On Seller’s request, Purchaser shall, at its sole
expense, sign and deliver all such further documents and instruments, and take all such
further acts, necessary to give full effect to this agreement or otherwise required by Seller. If
Purchaser fails to sign and deliver such documents or instruments to Seller, the entire
balance of the purchase price will, upon Seller’s tender of performance and at Seller’s option,
become immediately due and payable.
5. SECURITY INTEREST. To secure Purchaser’s prompt and complete payment of any
present and future indebtedness of Purchaser to Seller under this agreement, or any
document or instrument signed in connection with this agreement, Purchaser hereby grants
Seller a security interest, in Products, wherever located, whether now existing or hereafter
arising from time to time, and all accessions thereto and replacements or modifications
thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Purchaser
acknowledges that the security interest granted under this Section 5 is a purchase-money
security interest under applicable law. Seller may file a financing statement to perfect the
security interest, and Purchaser shall sign any statements or other documents necessary to
perfect Seller’s security interest. Purchaser also authorizes Seller to sign, on Purchaser’s
behalf, statements or other documentation necessary to perfect Seller’s security interest.
Seller may exercise all rights and remedies of a secured party under applicable law.
6. TITLE AND RISK OF LOSS; DELIVERY. Title and risk of loss to Products passes to
Purchaser upon Delivery. “Delivery” occurs upon Seller’s delivery of the Products to the
carrier in the event of shipment, or Purchaser’s receipt of Products at Seller’s location.
7. SHIPMENT. Seller shall deliver Products FOB at the location specified on Page 1.
Purchaser shall pay all shipping charges and insurance costs.
8. INSURANCE. Upon Delivery, and at all times thereafter while there is any balance due
under this agreement, Purchaser shall, at its own expense, have and keep Products insured
against loss by fire, theft, collision, vandalism, and any other hazard as Seller may require by
an insurance company acceptable to Seller and in an amount no less than the balance due
under or in connection with this agreement. On Seller’s request, Purchaser shall provide
Seller with a certificate of insurance from Purchaser’s insurer evidencing the coverages
specified in this Section. Purchaser shall provide Seller with 10 business days’ advance
notice in the event of cancellation or a material change in its policy.
9. BILL AND HOLD. If Purchaser requests to be billed prior to Delivery, in its sole
determination, notwithstanding any provisions to the contrary herein, Purchaser assumes all
risk of ownership and liability for Products as of the date of the invoice, including insuring
Products in accordance with Section 8. Purchaser shall indemnify, hold harmless, and
defend Seller and its parent, officers, directors, partners, members, shareholders,
employees, agents, affiliates, successors, and permitted assigns against any loss or damage
to Products between the invoice date and the date and time of Delivery. Purchaser
acknowledges, other than Delivery, the transaction with respect to Products is complete, and
there are no outstanding obligations preventing Delivery.
10. DAMAGES; MAXIMUM LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, ENCHANCED, INDIRECT, OR
PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION OF VALUE,
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR PRODUCTS, REGARDLESS
OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT
SELLER WAS ADVISED OF THE POSSIBILITY OF DAMAGES; AND (C) THE LEGAL OR
EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS
BASED. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR PRODUCTS, WHETHER ARISING OUT OF OR
RELATED TO BREACH OF CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL
OF THE AMOUNTS PAID TO SELLER UNDER THIS AGREEMENT. THE FOREGOING
LIMITATIONS APPLY EVEN IF PURCHASER’S REMEDIES UNDER THIS AGREEMENT
FAIL THEIR ESSENTIAL PURPOSE.
11. WARRANTY LIMITATIONS. Limited Warranties do not apply where Products: (a) are
subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper
installation, improper handling, abnormal physical stress, abnormal environmental
conditions, or use contrary to any instructions issued by Seller or manufacturer; (b) have
been reconstructed, repaired, or altered by any persons other than Seller or its authorized
representative; or (c) have been used with any third-party product, hardware, or product that
has not been previously approved in writing by Seller. Notwithstanding anything in this
agreement to the contrary, Seller’s liability under any Limited Warranty is discharged, in
Seller’s sole discretion and at its expense, by repairing or replacing any defective Products,
or crediting or refunding the price of any defective Products, less any applicable discounts,
rebates, or credits.
12. WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY IDENTIFIED
ON PAGE 1, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE
OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE,
USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
PURCHASER ACKNOWLEDGES IT HAS NOT RELIED ON ANY REPRESENTATION OR
WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF,
EXCEPT AS SPECIFICALLY DESCRIBED ON PAGE 1.
13. TRADE-IN EQUIPMENT. Purchaser assigns, sells, transfers, and conveys title of
any trade-in equipment described on Page 1 (“Trade-In Equipment”) to Seller.
Purchaser represents to Seller that Purchaser is the lawful owner with full authority to
sell and transfer Trade-In Equipment, and that the Trade-In Equipment is free of all
liens, encumbrances, liabilities, and adverse claims of every nature except as noted on
Page 1. Purchaser shall indemnify, hold harmless, and defend Seller against all claims
and demands of all persons who claim any interest to Trade-In Equipment. This Bill of
Sale on Trade-In Equipment will be effective as of the time of Delivery to Purchaser of
the replacement Products purchased hereunder, or at such earlier time that Seller
obtains physical possession of the Trade-In Equipment. All trade-ins are subject to
Trade-In Equipment being in “As Inspected Condition” by Seller at the time of Delivery
of replacement Products.
14. DATA AND PRIVACY. Seller and its partners, affiliates, subsidiaries, and third
parties, including but not limited to manufacturers, dealers, and service providers
(collectively, “Seller Parties”), collect and share information relating to products,
services, and customers as detailed in Seller’s Privacy Statement located at
www.zieglercat.com/privacy as well as applicable manufacturers’ statements, which
are hereby incorporated into this agreement by this reference. Manufacturers’
statements may be updated at any time without notice. Products equipped with
telematics or other tools, applications, or devices to assess information, such as
machine locations, operating hours, health of equipment, and basic utilization
(collectively “Telematics”), whether manufactured by Caterpillar or by other companies,
collect and transmit information to Seller Parties with a legitimate business reason to
access the information, including but not limited to providing services and support,
developing new products and services, personalizing user experiences, improving
products, or compliance with legal obligations. Purchaser understands that Telematics
may have been activated on Products by Seller or the manufacturer, and may be
subject to or required by specific manufacturer user agreements available to Purchaser
upon request. Purchaser consents to the collection, use, storage, processing, sharing,
and disclosure of such information by Seller Parties in accordance with this agreement,
Seller’s Privacy Statement, and applicable manufacturers’ statements.
15. INTELLECTUAL PROPERTY. All intellectual property rights in the Products,
including patents, trademarks, internet domain names, works of authorship,
expressions, designs, and design registrations, whether are not copyrightable, trade
secrets, and all other intellectual property rights related to or associated with Products
(collectively, “Intellectual Property”) are the sole and exclusive property of
manufacturer. Purchaser will not acquire any ownership interest in any Intellectual
Property Rights under this agreement. If Purchaser acquires any Intellectual Property
Rights in or relating to any Products by operation of law or otherwise, these rights are
deemed and are hereby irrevocably assigned to manufacturer or its licensors, as the
case may be, without further action by either party.
16. ENTIRE AGREEMENT; AMENDMENT. Purchaser may not revoke its purchase of
Products. The order will not be binding upon Seller until it is accepted in writing by an
authorized representative of Seller. This agreement, including the purchase order
transaction terms on page 1, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior and contemporaneous
understandings, agreements, representations, and warranties, written and oral,
regarding such subject matter. No modification of this agreement is effective unless it
is in writing and signed by each party.
17. FORCE MAJEURE. Seller will not be liable to Purchaser, and will not be deemed
to have breached this agreement, for any failure or delay in performing any term of this
agreement, to the extent the failure or delay is caused by or results from acts beyond
Seller’s control, including acts of God, flood, fire, earthquake, explosion, war, invasion,
hostilities, terrorist threats or acts, riot or other civil unrest, requirements of law,
embargoes or blockades, actions by any governmental authority, national or regional
emergencies, labor stoppages or slowdowns or other industrial disturbances, delays in
manufacture, supply shortages, or shortages of adequate power or transportation
facilities (collectively, “Force Majeure Events”). Any Force Majeure Event that has an
adverse effect on Seller’s ability to perform will absolve Seller from any liability to
18. DISPUTES. Purchaser shall pay Seller’s legal fees, court costs, and any other
costs of recovery incurred in enforcing the terms of this agreement. This agreement is
governed by and to be construed in accordance with the laws of the State of
Minnesota, without regard to its principles of conflicts of law. If legal action is brought to
enforce this agreement, the Federal District Court of Minnesota (4th Division) or
Hennepin County District Court (4th Judicial District) will be the exclusive jurisdiction
and venue for said action unless Seller, in its sole discretion, commences proceedings
in a different jurisdiction or venue.
19. UCC. All terms used but not defined in this agreement that are defined in the
Minnesota Uniform Commercial Code, as amended from time to time (the “UCC”) have
the meanings set forth in the UCC, and such meanings will automatically change at the
time any amendment to the UCC, which changes such meanings, becomes effective.
20. COUNTERPARTS. This agreement may be separately signed by Seller and
Purchaser in any number of counterparts, each of which, when signed and delivered,
will be deemed to be an original, and all of which will constitute the same agreement.
21. ELECTRONIC SIGNATURES. Purchaser agrees that the Electronic Signatures
(whether digital or encrypted) included in this agreement are intended to authenticate
this writing and have the same effect as manual signatures. “Electronic Signature”
means any electronic sound, symbol, or process attached to or logically associated
with a record and executed and adopted by a person with the intent to sign the record,
including facsimile or email electronic records, in accordance with the Uniform
Electronic Transactions Act, Minnesota Statutes 325L.01–325L.19, as amended from
time to time. A signed copy of this agreement delivered by facsimile, email, or other
means of electronic transmission is deemed to have the same legal effect as delivery
of an original signed copy of this agreement.