TERMS AND CONDITIONS OF SALE

1. Acceptance of Agreement. This Agreement is subject to acceptance by Snap-on Equipment, Inc. ("Seller"), at Seller’s offices in Conway, Arkansas.
2. Entire Agreement. Acceptance of orders, whether oral or written, is based on the express condition that Buyer agrees to all the terms and conditions contained herein. Acceptance of delivery by Buyer will constitute Buyer’s assent to these terms and conditions. This Agreement constitutes the entire agreement between the parties, supersedes all prior representations, warranties, agreements and understandings, whether oral or written, and may not be modified, amended or changed except by written agreement between the parties. Any terms or conditions of any purchase order or other instrument issued by Buyer which are in addition to or inconsistent with the terms and conditions shall not be binding upon Seller and shall not apply to this Agreement.
3. Title/Risk of Loss. This an F.O.B. shipping point Agreement, and title and risk of loss and damage to the equipment and accessories (Equipment), software (Software) described on the front side hereof shall pass to Buyer upon delivery to the carrier. Quoted delivery dates are approximate only, and Seller shall not be liable for any delay in shipment regardless of cause.
4. Installation and Acceptance of Equipment & Software. The purchase price and/or license fee includes all necessary installation, start-up, and familiarization training of the Equipment & Software by Seller’s authorized representatives during Seller’s normal working hours. Buyer is solely responsible for site preparation, including, without limitation, any special electrical connections, polarization and grounding, ventilation, and pit construction. Unless Buyer gives Seller written notice specifying any defect in the Equipment and/or Software within 10 days following installation, it shall be conclusively presumed that the Equipment and/or Software is in good operating condition and that it has been accepted.
5. Invoicing and Terms of Payment. Factory-shipped Equipment will be invoiced at the time of purchase. Software delivered by Seller will be invoiced on the date of renewal or changes executed by buyer. Terms of payment are Net due from the date of invoice, unless otherwise specified in writing by Seller’s Credit and Collection Department. Buyer shall be responsible for and shall pay all transportation also unless otherwise specified and installation charges and all taxes, fees and assessments, now or hereafter imposed, whether or not prepaid by Seller, which are applicable to the transactions covered by this Agreement. A late charge will be assessed at the rate of 1 1/2% per month or the highest rate permitted by law, whichever is less, on all past due accounts.
6. Trade-ins. This transaction may involve a trade-in. Buyer acknowledges to Snap-on Equipment that such title to such Trade-ins is marketable and free and clear of liens or encumbrances, and that such Trade-ins will be in the same condition upon delivery to Seller as at the time Buyer made the offer to trade. Risk of loss or damage to such Trade-ins shall remain with Buyer until the Equipment & Software has been received and accepted by Seller. If equipment and/or software manufactured or supplied by Seller is traded in, Buyer hereby releases Seller from all claims resulting from or arising out of such Trade-ins.
7. Security Interest. To secure payment under this Agreement, Seller reserves, and Buyer hereby grants to Seller, a security interest in (A) the Equipment & Software; (B) any substitutions, replacements and additions thereto; and (c) the proceeds thereof. This Agreement shall be deemed a security agreement and a copy thereof may be filed as a financing statement in order to perfect Seller’s security interest. Buyer hereby authorizes Seller to execute and file all documents deemed necessary by Seller to protect Seller’s security interest in the Equipment & Software until the purchase price has been paid in full. Unless Buyer is in default under the terms and conditions of this Agreement, Buyer may retain possession of the Equipment & Software and use it in any lawful manner not inconsistent with the terms and conditions of this Agreement.
8. Warranty and Disclaimer. Seller warrants only to the original Buyer that under normal use, care and service, the Equipment (except as otherwise provided herein) shall be free from defects in material and workmanship for one year (6 months in the case of used, including demonstration, Equipment) from the date of original invoice. Leads, probes, external hoses, timing lights, remote control modules, fuel pump testers, cables, pick-ups, adapters and all other attachments, supplies and consumables (except as otherwise provided herein) are warranted for 90 calendar days from the date of original invoice. ADAS targets and accessories, filter elements, light bulbs, printer paper and printer ribbons are not warranted. Printed circuit boards purchased from, but not installed by, Seller are not warranted. This Warranty does not cover software which is separately warranted in accordance with the provisions of Section 9 of this Agreement. This Warranty does not cover (and separate charges for parts, labor and related expenses shall apply to) any damage to, malfunctioning, inoperability or improper operation of the Equipment caused by, resulting from or attributable to (A) abuse, misuse or tampering; (B) alteration, modification or adjustment of the Equipment by other than Seller’s authorized representatives; (C) installation, repair or maintenance (other than specified operator maintenance) of the Equipment or related equipment, attachments, peripherals or optional features by other than Seller’s authorized representatives; (D) improper or negligent use, application, operation, care, cleaning, storage or handling; € fire, water, wind, lightning or other natural causes; (F) adverse environmental conditions, including, without limitation, excessive heat, moisture, corrosive elements, or dust or other air contaminants; radio frequency interference; electric power failure; power line voltages beyond those specified for the Equipment; unusual physical, electrical or electro-magnetic stress; and/or any other condition outside of Seller’s environmental specifications; (G) use of the Equipment in combination or connection with other equipment, attachments, supplies or consumables not manufactured or supplied by Seller; or (H) failure to comply with any applicable federal, state or local regulation, requirement or specification governing emission analyzers and related supplies or consumables (including, without limitation, filters, printer paper, printer ribbons and calibration gases). NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SHALL APPLY, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. Seller’s obligations under this warranty are limited solely to the repair or, at Seller’s option, replacement of or refund of the original purchase price for, Equipment or parts which to Seller’s satisfaction are determined to be defective and which are necessary, in Seller’s judgment, to return the equipment to good operating condition. Repairs or replacements qualifying under this Warranty will be performed or made on regular business days during Seller’s normal working hours within a reasonable time following Buyer’s request. All requests for warranty service must be made during the stated warranty period
9. Software License and Warranty. Unless Buyer (Licensee for purposes of this Paragraph) receives a separate written software license and/or software warranty from Seller (Licensor for purposes of this Paragraph), Buyer acknowledges that all software listed on the front side of this Agreement or otherwise furnished with the Equipment (the "Software") is provided to Buyer under a non-transferable and non-exclusive license from Seller solely for Buyer’s use with the Equipment. In the event Buyer receives a separate written software license and/or software warranty from Seller, the terms of that separate written software license and/or software warranty shall supersede the terms of this Paragraph 9. All Software is proprietary to Seller, licensed or sublicensed to Seller, and title thereto shall at all times remain in Seller. Buyer may not (A) copy the Software into any machine readable or printed form for backup or archival purposes; (B) modify, merge, translate, decompile, decode or otherwise alter the Software; (C) use the Software on more than one piece of Equipment at the same time; or (D) transfer, assign, rent, lease, sell or otherwise encumber or dispose of the Software except as otherwise provided in Section 17. Seller reserves the right to modify the Software at any time (including, but not limited to, hardware requirements needed to run the Software) without prior notice to Buyer. Seller may terminate any Software license granted hereunder and require the return of the Software if Buyer fails to comply with any of the terms and conditions of this Agreement. THE SOFTWARE IS PROVIDED AS IS AND WITHOUT WARRANTY, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. BUYER ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SELLER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE OR ANY RELATED SOFTWARE DOCUMENTATION IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR IN TERMS OR BUYER’S REQUIREMENTS. IF THE SOFTWARE OR ANY RELATED SOFTWARE DOCUMENTATION IS DEFECTIVE, BUYER (AND NOT SELLER OR ITS AGENTS OR EMPLOYEES) ASSUMES THE ENTIRE RISK AND COST OF SERVICE, REPAIR AND/OR CORRECTION.
10. Maintenance. This Agreement does not include maintenance service. Buyer may elect to purchase maintenance service for the Equipment by entering into a separate maintenance agreement with Seller, or its affiliates.
11. Limitation of Liability. In no event shall Seller be liable to Buyer or anyone claiming through or against Buyer for any special, indirect or consequential damages (including, without limitation, lost profits, revenues, anticipated sales, business opportunities or goodwill; interruption of business; or loss of business information) resulting from or arising out of (a) negligence; (b) any breach or non-performance of this agreement or any duties, obligations, responsibilities, representations or warranties hereunder; (c) the delivery, installation, operation, performance, use or maintenance (or non-performance, delay in or failure) of the equipment, software or services to be provided hereunder; or (d) otherwise, even if Seller has been advised of the possibility of such damages. Seller’s entire liability for damages to Buyer (or to anyone claiming through or against Buyer) resulting from or arising out of the performance or non-performance of this Agreement or for any cause whatsoever, and regardless of the form of action, whether in contract or in tort (including negligence or strict liability) or any other legal theory, shall not exceed the purchase price stated herein for the specific item(s) of Equipment found to be defective. Buyer assumes full responsibility for the overall operating environment in which the Equipment is to function, including, without limitation, temperature, humidity, corrosive elements, and dust or other air contaminants. No action resulting from or arising out of any claimed breach of this Agreement may be brought by either party more than 2 years following the date of original invoice of the Equipment & Software, except that an action for non payment may be initiated at any time allowed by law.
12. Authority of Representatives. Seller’s sales and service representatives have no authority to bind Seller to any terms, conditions, representations, warranties, agreements or understandings, whether oral or written, not specifically set forth in this Agreement.
13. Seller’s Remedies. In the event Buyer breaches this Agreement, Seller has all the remedies available to a seller under the Uniform Commercial Code and may pursue any other remedy available at law or in equity. Should legal proceedings be instituted by Seller to recover any amounts due hereunder or to take possession of the Equipment & Software, Buyer shall pay all collection and legal expenses (including court costs and reasonable attorneys’ fees). Seller’s rights shall be cumulative and action on one right shall not be deemed to constitute an election or waiver of the other rights to which Seller may be entitled.
14. Termination for Convenience. If Buyer notifies Seller that it wishes to terminate any order or this Agreement for its convenience and Seller accepts such termination, Seller will stop all work as promptly as reasonably possible, but Buyer shall be responsible for (a) a termination charge equal to 10% of the purchase price of the Equipment & Software prior to shipment of the Equipment & Software or (b) a restocking charge of 15% of the purchase price of the Equipment & Software plus shipping and handling costs if written notice of termination is received by Seller subsequent to shipment of the Equipment & Software.
15. 15. Waiver. Waiver by Seller of any breach or default shall not constitute waiver of any other breach or default by Buyer or waiver of any of Seller’s rights. If more than one Buyer is named in this Agreement, the liability of each shall be joint and several.
16. Force Majeure. Seller shall be excused from performance hereunder and shall not be liable for any failure or delay in delivery of all or any part of the Equipment & Software because of acts of God; casualty losses; accidents; fires; floods; explosions; strikes; labor disputes; wars; civil disorders; vandalism; failures or delays in transportation; governmental or judicial action affecting the terms and conditions of this Agreement or otherwise; shortages of labor, fuel, raw materials, machinery, parts or supplies; or any other cause beyond its or its suppliers’ control. In the event of any such contingency, Seller shall have such additional time for performance as may be reasonably necessary, and may allocate production and deliveries among its customers.
17. Assignment. Neither this Agreement nor any interest herein is assignable or transferable by operation of law by or for the benefit of Buyer except with the prior written consent of Seller. Seller may assign this Agreement in whole or in part without notice to or the consent of Buyer. Buyer agrees not to assert against any such assignee of Seller for value any defense, counterclaim or set-off that Buyer has or may have against Seller and agrees that its obligations to such assignee, including all payments due hereunder, shall be absolute and unconditional. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
18. Choice of Law. This Agreement shall be deemed to have been made in Kenosha, Wisconsin, and the validity, performance and construction of this Agreement shall be governed by the substantive laws of the State of Wisconsin, without giving effect to its conflict of laws principles. BUYER AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF WISCONSIN IN ANY ACTION TAKEN BY SELLER RELATING TO THIS AGREEMENT OR ANY PROVISIONS, RIGHTS OR REMEDIES HEREOF. BUYER FURTHER AGREES THAT ANY ACTION TAKEN BY BUYER AGAINST SELLER RELATING TO THIS AGREEMENT OR ANY PROVISIONS, RIGHTS OR REMEDIES HEREOF SHALL BE TAKEN ONLY IN THE COURTS OF THE STATE OF WISCONSIN AND SHALL NOT BE TAKEN IN ANY OTHER JURISDICTION. BUYER RECOGNIZES THAT THIS COVENANT IS AN ESSENTIAL PROVISION OF THIS AGREEMENT, THE ABSENCE OF WHICH WOULD MATERIALLY ALTER THE CONSIDERATION GIVEN BY BUYER TO SELLER HEREUNDER. BUYER HEREBY WAIVES TRIAL BY JURY.
19. Notices. All notices under this Agreement shall be in writing and sent by pre-paid certified mail, return receipt requested or by overnight courier service, or by facsimile with a confirming copy mailed, to Buyer at its billing address and to Seller at its offices in Kenosha, Wisconsin.
20. Severability. Should any provision of this Agreement or any of Seller’s remedies be held invalid or unenforceable by any court of competent jurisdiction, the remaining provisions and remedies shall remain in full force and effect.