Equipment Being Acquired. Subject to the terms and conditions hereof, USI hereby sells, assigns, transfers, conveys and delivers to Purchaser, and Purchaser hereby purchases all of USI’s right, title and interest in and to the Equipment.
Delivery; Removal. Seller shall tender the Used Equipment for delivery at the Facility. Buyer shall be responsible for the costs of loading the Used Equipment onto Buyer’s truck. Buyer shall also be responsible for prepping and securing for shipment using proper shipping brackets for Used Equipment.
Acceptance of Equipment “AS IS”; Disclaimer of Warranties. Purchaser hereby acknowledges that the Equipment is being sold “AS IS” and “WHERE IS” with all faults. Purchaser further acknowledges that Purchaser is satisfied with and has accepted the Equipment in its current condition. USI EXPRESSLY DISCLAIMS AND PURCHASER HEREBY WAIVES THE BENEFIT OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. THE PURCHASER ACKNOWLEDGES THAT USI HAS NOT IN ANY WAY MADE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE CONDITION OR FITNESS OF THE EQUIPMENT, AND PURCHASER ACKNOWLEDGES THAT THE SAME IS BEING SOLD HEREUNDER ON AN “AS IS” AND “WHERE IS” BASIS.
Representations and Warranties of USI. USI hereby represents and warrants to Purchaser that: (a) USI has all requisite power and authority to enter into this Agreement and all of the other contracts, documents and instruments contemplated hereby; and (b) upon the consummation of the transactions contemplated hereby, Purchaser will obtain good and marketable title to the Equipment free and clear of all liens, encumbrances, and adverse claims.
Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to USI that: (a) Purchaser has all requisite power and authority to enter into and carry out this Agreement and all of the other contracts, documents and instruments contemplated hereby in accordance with their terms; (b) Purchaser has inspected the Equipment and is satisfied with and has accepted the Equipment in “As Is” and “Where Is” condition with all faults; (c) Purchaser shall dismantle and remove the Equipment from the USI Facility in a safe and reasonable manner, taking all proper safety precautions to ensure the safety and welfare of those working at the USI Facility and Purchaser’s employees, contractors, subcontractors or agents; and (d) Purchaser has the capability to remove the Equipment on or before the Removal Deadline.
Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS USI, ITS AGENTS, EMPLOYEES, TRUSTEES, ADMINISTRATORS, OFFICERS, DIRECTORS, SUCCESSORS OR ASSIGNS (THE “INDEMNIFIED PARTIES”) WITH RESPECT TO AND IN CONNECTION WITH ANY CLAIM, CONTROVERSY, LIABILITY, DAMAGE, LOSS, FINE, DEBT, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES AND EXPERTS’ FEES, WHETHER KNOWN OR UNKNOWN, FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF, RELATING TO, OR RESULTING FROM, IN ANY WAY, ANY CLAIM OR CAUSE OF ACTION THAT IS ASSERTED BY ANY GOVERNMENTAL AGENCY AND/OR ANY THIRD PARTY AGAINST USI THAT ARISES FROM: (I) PURCHASER’S NEGLIGENCE, WILLFUL OR WRONGFUL ACTS OR THE NEGLIGENCE, WILLFUL OR WRONGFUL ACTS OF ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, OR SUBCONTRACTORS; (II) THE BREACH OR ASSERTED BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATION CONTAINED IN THIS AGREEMENT OR IN ANY OTHER AGREEMENTS, INSTRUMENTS OR DOCUMENTS BY PURCHASER, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUBCONTRACTORS; OR (III) THE INJURY TO OR DEATH OF ANY PERSON OR THE DAMAGE TO OR LOSS OF ANY PROPERTY OR THE EQUIPMENT OCCURRING AT ANY TIME SUBSEQUENT TO PURCHASER’S ACQUISITION OF THE EQUIPMENT AND/OR DURING THE REMOVAL OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, THE DISMANTLING OR MOVEMENT OF THE EQUIPMENT.
Taxes and Assessments; Risk of Loss. Purchaser shall pay any taxes, duties, imposts, levies and assessments that are due and payable on the Equipment after the Effective Date of this Agreement. USI shall bear the risk of loss or damage to the Equipment until Purchaser’s Possession. For the purposes of this Agreement, “Possession” shall be defined as the moment Purchaser starts to dismantle, move or remove the Equipment from the USI Facility. Once Purchaser is in Possession of the Equipment, Purchaser shall insure the Equipment and shall be solely responsible for the risk of loss. If the Equipment is totally or substantially destroyed or partially damaged prior to Purchaser’s Possession, USI may enforce this Agreement subject to reduction of the Purchase Price corresponding to such destroyed or damaged Equipment.
Mutual Disclaimer of Damages. Except with regard to Purchaser’s indemnification obligations stated in this Agreement, under no circumstances shall either party be liable for any consequential, incidental, indirect, special, treble or punitive damages, whether based on statutory or common law, including, but not limited to, loss of profits, and both parties hereby disclaim and waive any claims to such damages.
Good Faith; Further Assurances. Each of the parties hereto agrees to take or cause to be taken such further actions (other than the expenditure of moneys), to obtain such consents and approvals, and to execute, deliver and file or cause to be executed, delivered and filed such further instruments as any other party may from time to time reasonably request in order to fully effectuate the purposes, terms and conditions of this Agreement.
Alternative Dispute Resolution. This Agreement and any dispute related to this Agreement shall be governed by the laws of the State of Indiana. Any and all disputes, complaints, controversies, claims and grievances arising under, out of, in connection with, or in any manner relating to the Agreement shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment or award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Evansville, Indiana, and be governed by and this Agreement construed according to, Indiana law, before one (1) arbitrator who shall be an attorney residing in the State of Indiana, and having substantial experience in commercial law issues. In the event of any arbitration between the parties hereto involving this Agreement or the respective rights of the parties hereunder, the party who does not prevail in such arbitration shall pay to the prevailing party reasonable attorneys’ fees, costs and expenses of such arbitration incurred by the prevailing party. As used herein the term ‘prevailing party’ shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other’s breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. The arbitrator shall be required to make written findings of fact and conclusions of law to support its award. Except as may be required by law, neither a party nor an arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. By execution of this Agreement, the parties consent to the jurisdiction of the American Arbitration Association and waive any objection which either party may have to any proceeding so commenced based upon improper venue or forum non coveniens.
Interpretation. This Agreement shall inure to the benefit of, and shall be binding upon, the respective legal representatives, successors, and assigns of each of the parties. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Agreement shall remain in full force and effect. This Agreement represents a compromise between the parties and is a product of arms-length negotiations. These parties have read this Agreement completely and have had the opportunity to seek the advice and assistance of competent legal counsel. In the event that ambiguity exists or is deemed to exist in any provisions of this Agreement, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be construed against the drafter of this Agreement. No statement, action, or omission of either of the parties hereto shall be considered to be a waiver of any right, including, but not by way of limitation, any failure of either party to insist upon the strict performance of any agreement, term or condition hereof, or to exercise any right or remedy consequent upon a breach thereof, during the continuation of any such breach shall constitute a waiver of any such breach or any such agreement, term or condition. No remedy or election hereunder shall be deemed exclusive, but shall, whenever possible, be cumulative with all other remedies at law or in equity. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that this Agreement may be signed by electronic transmission in portable document format (PDF) or facsimile transmission and shall be deemed to be original signatures. All headings set forth herein are included for the convenience of reference only and shall not affect the interpretation hereof, nor shall any weight or value be given to the relative position of any part or provision hereof in relation to any other provision in determining such construction. The recitals set forth in the above preamble are incorporated herein by this reference and made a part of this Agreement. As used in this Agreement, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall include any other gender. Except as stated herein otherwise, this instrument is the final agreement, contains the entire, complete and exclusive agreement between the parties concerning this subject, and supersedes all prior oral or written understandings, agreements or contracts, formal or informal, between the parties. THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS AGREEMENT MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY AN AGREEMENT IN WRITING EXECUTED BY ALL PARTIES HERETO.