1. Formation of Contract: By Customer's acceptance of the machinery or equipment, hereinafter referred to as goods, and/or services which are described in this invoice, Customer and Miller Welding & Machine Company, hereinafter referred to as Miller Welding, intending to be legally bound, hereby agree to the terms and conditions which are hereinafter set forth.
2. Payment: Payment in full shall be paid to Miller Welding by Customer on the date set forth on the face of this invoice. Customer agrees to pay a carrying charge of one and one-half percent (1 1/2%) per month on the unpaid balance to the extent that payment is received after the due date specified on the face of this invoice.
3. Warranty: The goods and services sold pursuant to this invoice are warranted against defects in material and workmanship from the date of delivery in the following manner:
- Repairs to the goods for a period of six (6) months.
- Parts or components manufactured by Miller Welding for a period of six (6) months.
- Parts or components obtained by Miller Welding from suppliers shall be subject only to the warranty provided by and enforceable against the manufacturer of such parts or components.
THE ABOVE WARRANTY, AS LIMITED THEREIN, IS THE ONLY WARRANTY EXTENDED IN CONNECTION WITH THE GOODS AND SERVICES SOLD BY MILLER WELDING AND IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTIBILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
4. Limitation on damages. Payment with respect to the warranty set forth in Paragraph 3, hereinafter referred to as "warranty," shall be limited to a maximum sum equal to the amount that Customer paid Miller Welding for such services or goods set forth in this invoice that are determined to be defective. The obligation to make payment pursuant to the warranty shall be based upon an inspection and determination by Miller Welding that Customer's machinery or equipment became defective as a result of ordinary and normal use in accordance with the designed purpose and intended application of the machinery or equipment, provided written notice of such defect is given by Customer within forty-eight (48) hours after such defect is first discovered. Inspection of the machinery or equipment may occur at Customer's plant or at a location to be determined by Miller Welding at its discretion. Miller Welding reserves the right to perform the work associated in fixing the defect itself or it may authorize a third party to perform the same at a cost up to the maximum amount recoverable under the warranty. The warranty does not cover expenses incurred by Customer in reworking, repairing, or replacing such defective repairs and parts, or of supplying any missing parts, except upon written consent of Miller Welding. In no event shall such warranty cover costs of transportation, rigging, disassembly, inspection and/or installation of the subject parts replaced or of the repaired machinery or equipment. Under no circumstances shall Miller Welding have any liability for payment of any consequential, incidental, indirect or special damages of any kind including, but not limited to lost profit. The limitation on damages for a breach of the warranty also applies to repeat orders.
5. Customer's Responsibility and Indemnification of Miller Welding:
a) Maintenance, Alterations and Safety Devices: Upon removal from Miller Welding's plant, Customer shall assume and bear sole responsibility for proper maintenance of the goods and the machinery or equipment in which the goods became components and for providing adequate and sufficient safeguards, work handling tools and safety devices necessary to protect fully all personnel (including operators, helpers, repairmen, bystanders and all others who would be in the vicinity of the goods and such machinery and equipment) from bodily injury or death which may result from the use, operation, set up or maintenance of the goods and such machinery or equipment including all requirements for compliance with prevailing federal, state and local codes and industry accepted standards. Miller Welding shall bear no liability for the failure of Customer to provide all such safeguards, work handling tools or safety devices. Customer shall require and be responsible for requiring all personnel operating the goods and such machinery and equipment to use goggles and other safety devices when required and to be properly educated and trained in the operation of the goods and such machinery and equipment. Customer shall not permit anyone to alter or modify any of the goods and such machinery or equipment including but not limited to the removal or modification of safety devices, warning signs or signals, electrical circuitry, instruction labels, or manuals attached to or furnished with the goods and machinery or equipment.
b) Indemnification by Customer: CUSTOMER AGREES TO INDEMNIFY AND HOLD MILLER WELDING, ITS AGENTS AND EMPLOYEES HARMLESS from and against any and all claims, damages, losses, expense, legal actions (including attorney fees and costs) and liability brought against or sustained by Miller Welding arising out of a breach of the provisions of Paragraph 5 a) hereof or arising as a result of any liability based upon improper design or improper specifications as Customer agrees that Miller Welding neither designed the goods nor did Miller Welding provide the specifications by which the goods were manufactured.
6. Fair Labor Standards Act: Miller Welding certifies that the goods were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards act as amended and of regulations and orders to the United States Department of Labor issued under Section 14 thereof.
7. Insurance: Customer agrees to carry and maintain insurance policies for Workers' Compensation, General Liability including products and completed operations, which cover bodily injury, property damage and economic loss. A Certificate of insurance evidencing such coverage shall be presented to Miller Welding upon request.
8. Patents: Customer shall indemnify and hold Miller Welding, its agents and employees harmless from any claim for infringement of patent, copyright, trademark or other proprietary right relating to the goods or services described in this invoice, including any components thereof repaired or manufactured by Miller Welding and sold pursuant to this invoice.
9. Limitations on Actions: Any legal action or suit against Miller Welding in any way arising from the goods and or services described in this invoice must be commenced within one (1) year after the claim or cause of action has arisen. The Court of Common Pleas of Jefferson County, Pennsylvania, shall have exclusive jurisdiction of all disputes arising between Miller Welding and Customer on account of any matter relating to this invoice.
10. State Law Applicable: The sale of goods and services described in this invoice shall be governed in all respects by the laws of the Commonwealth of Pennsylvania.