W16-089_Tom Dikos_Aramark-Everett_DAF Walkway Expansion
Equipment. Non-durable parts are those made of flexible materials and expected to wear or deteriorate with time and use. Examples of non-durable parts are gaskets, seals, belts, hoses, membranes, airbags, and padding. a. Ellis will not warranty any Equipment that is not paid in full. Only after complete payment is made will the warranty become active. This warranty is contingent upon proper use of the Equipment under normal operating conditions, proper installation and maintenance. When defective parts show deliberate abuse, this warranty will be subject to cancellation at the option of Ellis. Ellis is not responsible for loose bolts, belts, tubing, wiring, etc.; these items require periodic inspection and maintenance by the buyer. Maintenance instructions must be followed thoroughly to protect the warranty. Ellis shall have no obligation or liability for Equipment which has been improperly stored, handled, installed, operated, maintained, subjected to abnormal conditions of temperature, moisture, abrasion or corrosion or which has been altered/repaired by others without the written approval/consent of Ellis. b. All Equipment and parts claimed to be defective must be returned during the warranty period to Ellis for examination. Those determined by Ellis to be defective in material or workmanship will be repaired or replaced at Ellis's option. Any such replaced part shall become Ellis’s property. Insofar as Equipment or parts not manufactured by Ellis may be concerned, Ellis agrees and shall be bound only to assign to Purchaser whatever relevant warranty if any, the sub-supplier thereof may have made to Ellis, but such articles are not warranted in any way by Ellis. Where the original Equipment warranty has expired, Ellis does not warrant replacement parts as the condition of the Equipment may affect the life of the part. c. Ellis shall not be responsible for freight or transportation costs of any part covered under the terms of the Equipment warranty. Ellis will not accept any liability for loss of or damage to Equipment or parts after transfer to a common carrier. d. The warranty becomes void if the Equipment has been altered by the user; operating under loads, speeds or electrical current characteristics other than those prescribed by the Ellis, or damaged by negligence or in an accident. Modifications of the Equipment or the use of repair parts not approved by Ellis will subject this warranty to cancellation. All warranties are voided in the event Purchaser sells the Equipment within the warranty period. Ellis may, upon request in writing, agree to continue warranty coverage. e. Correction of nonconformities in the manner provided above shall constitute the entire liability of Ellis with respect to such Equipment unless otherwise expressly set forth in the Contract. a. Purchaser’s exclusive remedy under this warranty is limited to the repair or replacement of defective Equipment supplied by Ellis, as set forth above. ELLIS IS NOT RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE BREACH OF THIS OR ANY OTHER EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE EQUIPMENT, WHETHER ARISING IN TORT OR BY CONTRACT. ELLIS FURTHER DISCLAIMS ALL LIABILITY FROM PERSONAL INJURY RELATING TO ITS EQUIPMENT TO THE EXTENT PERMITTED BY LAW. BY ACCEPTANCE OF ANY OF ELLIS’S EQUIPMENT, THE PURCHASER ASSUMES ALL LIABILITY FOR THE CONSEQUENCES ARISING FORM THEIR USE OR MISUSE. 12. WARRANTY LIMITATIONS. This warranty is subject to the following LIMITATIONS:
b. Unless the Equipment purchased under the Contract has a special written warranty, this express warranty is the only warranty applicable to this transaction. IT EXCLUDES ALL OTHER EXPRESS ORAL OR WRITTEN WARRANTIES AND ALL WARRANTIES WITH RESPECT TO THE EQUIPMENT, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE . 13. Waiver. No waiver, alteration or modification of any of the provisions hereof shall be binding on Ellis unless made in writing and agreed to by a duly authorized official of Ellis. Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any default by the other which may thereafter occur. No delay or omission by Ellis in exercising any right or remedy provide for herein shall constitute a waiver of such right or remedy and shall not be constituted as a bar to or a waiver of any such right or remedy on any future occasion. 14. Force Majeure. The timeliness of performance by Ellis under this Contract is in every case subject to delays caused by an act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain materials or power, civil commotion, governmental laws, regulations or orders, acts or inaction of Purchaser, inability of Ellis's subcontractors to perform, or any other cause beyond the reasonable control of Ellis, or labor trouble, strike, lockout or injunction (whether or not such labor event is within the reasonable control of Ellis). In the event of any such delay, the period of time for performance of services affected by such delay will be extended to reflect the effective delay occasioned thereby. Equipment and parts on which manufacture or delivery is delayed due to any cause within Purchaser’s control or due to strikes, accidents or any other cause beyond Ellis’s control, may be placed in storage by Ellis for Purchaser’s account and risk. All expenses in connection therewith shall be paid in full by Purchaser upon receipt of Ellis invoices. 15. Legal Costs and Expenses. In the event that Ellis shall incur any legal fees or costs or expenses in order to enforce or attempt to enforce this Contract caused by a breach hereof or default herein by the Purchaser, the Purchaser shall pay all such attorneys' fees and costs. 16. Governing Law, Jurisdiction and Venue. Purchaser shall execute a UCC Financing Statement on request and irrevocably authorizes Ellis Corporation to execute and file same. This Contract shall be governed by, and construed and enforced in accordance with the laws of the State of Illinois. In the event of a dispute hereunder, the parties consent to the exclusive jurisdiction of the state courts of, and federal courts sitting in, the State of Illinois. Any state court action, or any alternative dispute resolution proceeding shall be filed and maintained in DuPage County, Illinois and any federal court action shall be maintained in the federal court venue nearest to DuPage County, Illinois. 17. Severability. If any provision of this Contract shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 18. Entire Contract. This Contract shall constitute the entire contract between the Purchaser and Ellis irrespective of inconsistent or additional terms or conditions in any e-mails other proposals or other documents submitted by Purchaser to Ellis or from Ellis to Purchaser. This Contract supersedes any other contract or agreement whether written or verbal between Purchaser and Ellis and this Contract may not be modified except by a written amendment signed by Purchaser and Ellis specifically referencing this Contract. 19. Binding Effect. This Contract shall be binding upon the parties hereto and their heirs, executors, personal representatives, beneficiaries, successors and assigns, subject to the limitation of assignment set forth herein.
ELLIS CORPORATION - 1400 W. BRYN MAWR AVE., ITASCA, IL 60143 - PH: (800) 453-9222 - FAX: (630) 250-9241
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