Terms and Conditions
Agreements, Terms and Conditions
Both Conley, Lott, Nichols Machinery Company (Heavy Equipment Dealerships) and Conley, Lott, Nichols Machinery of Texas, L.P. (Bobcat Dealerships) shall be herein referred to as "CLN", and the applicant shall be referred to as "Customer". The Customer, as presented on this Application For Credit, desires to purchase goods and/or services from CLN on an open accountand agrees in consideration of the creation of the open account to be bound by the following terms and conditions. All purchases or rentals by the Customer shall be made pursuant to this agreement.
Upon CLN's acceptance of this agreement, the agreement becomes a binding contract between the parties and embodies the entire agreement of the parties. No promises, representation or agreement purporting to modify this agreement and no revocation, partial or otherwise, or change, amendment, addition or alteration shall be valid unless the same be in writing, signed by all parties hereto or by their duly authorized agents. Waiver by CLN of any terms or condition of this agreement or waiver of any breach thereof shall not be construed as a waiver of any other terms, conditions or breach. Determination that any provision of this agreement is illegal or invalid shall not affect the validity or enforceability of the remaining provisions of this agreement.
Customer gives to CLN, and any finance company, authorization to check Customer's credit background, and authorizes any and all banks, finance companies and business references to release information to CLN, and said finance company.
Customer agrees to provide CLN prompt written notice of any change in Customer's name, address, ownership or form of business entity. Customer warrants that: a)all information provided by Customer on this application is true and correct: b) all financial documents provided to CLN are true and correct and Customer will provide CLN such documents in the future upon request: c) all trade references are current open accounts with business entities not affiliated with the Customer.
CLN reserves the right to suspend Customer's credit, or require a personal guaranty any time it feels the customer's credit worthiness has become a risk. Customer agrees that any false, misleading or incomplete information on this application may result, at CLN's sole discretion, in Customer's account being suspended or terminated, with all amounts owed them being due and payable immediately, and resulting in all remedies and costs being due in accordance with Section 6, below.
CLN will mail to Customer at the address set forth in this application, all invoices and a monthly statement of account, which will show Customer account activities, accured interest, and a new balance. Customer shall pay in full in accordance with the terms of the particular purchase agreement, invoice, rental agreement and/or other shipping or delivery document, with or without Customer's signature. Customer agrees to pay CLN a service charge (as per state statute) on each nonsuffiencient funds check (NSF) returned to CLN. In the absence of such express terms and conditions, all sums past due 31 or more days shall bear an interest charge at the rate of one and one half percent (1.5%) per month. ALL INVOICE BALANCES ARE DUE IN FULL BY THE 10th DAY FOLLOWING DATE OF INVOICE, AT P.O. BOX 660236, DALLAS, TX 75266-0236. Customer agrees to notify CLN, in writing, of any error in the invoice with 10 days after the date of that invoice. If not so notified, the invoice shall be deemed to be correct and accepted as rendered. All written notices of error in the invoice are due to CLN at the same address to the attention of the Credit Manager.
CLN shall have the sole discretion to apply any payment received from Customer hereunder in any manner which CLN deems proper. CLN may apply payments first to late payment charges, accrued interest, shipping charges, actual prejudgement and postjudgement attorney's fees and costs, or any other applicable charge, in any order before applying the remainder of any such payments towards Customer's principal account balances.
Customer agrees that if CLN is not paid in accordance with the terms herein, Customer shall pay for all costs and expenses incurred by CLN in connection with collecting all sums owned by Customer, including actual fees charged by a collection agency, attorney fees and any other charges allowed by applicable statute; whether or not a lawsuit has been initiated. Additionally, both parties agree that if either party refer this agreement to an attorney and an action is brought to enforce this agreement, that Dallas County, Texas, shall be the exclusive jurisdiction and legal venue of said action, and that CLN may, at its sole discretion, require any action brought by either party to be resolved in Dallas, Dallas County, Texas in accordance with the Construction Industry Rules of the American Arbitration Association.
If Customer purchases equipment or materials, Customer agrees that title to all such equipment and materials shall not transfer to Customer until the purchase price, together with all interest and other costs lawfully added to the purchase price, is paid in full.
The goods sold or rented pursuant to this agreement are sold or rented "as is" and without any warranty whatsover, with the sole exception of written manufacturer warranties. Except for any such express written warranties, CLN sells or rents all goods and services pursuant to this agreement without warranty of any nature whatsoever, express or implied, including any warranty of merchantability or of fitness for a particular purpose.
Rentals
This Agreement will also serve to govern all Rental transactions between Customer and CLN. This Agreement is the entire Rental Agreement between the parties. This Agreement may not be amended verbally. No Rental employee of CLN may waive or amend the terms and conditions of this Agreement. Any failure by CLN to enforce any of its rights under this Agreement shall not be deemed a waiver of any other right(s), or a waiver of future enforcement of any right(s).
Customer is responsible for normal routine maintenance and care of the Equipment (including without limitation the changing of air and fluid filters and maintaining appropriate fluid levels) at all recommended intervals. Other than normal tire wear, CLN will note all damage and/or abuse to the equipment, and charge the Customer for the appropriate costs of repair and/or replacement
- CLN shall not be liable for any incidental or consequential damage resulting from the processing of this order or for the Rent or operation of any equipment.
- CLN assumes no liability of any kind or character resulting from or growing out of the use, maintenance, operation, storage, erection, dismantling, servicing or transportation of the Equipment. Customer is responsible for any losses or injury caused by the Equipment. Customer agrees to maintain insurance which protects CLN from liability for any damage or injury caused by the Equipment, indemnify and hold CLN harmless from any and all loss, costs, damages, attorney fees or other expenses which it may have or incur by reason of any claim asserted against CLN.
- Customer promises to provide CLN evidence of physical damage insurance covering "Contractor's Equipment" or showing CLN as the loss payee and additional insured before the beginning of any Rental period. If Customer does not provide this insurance, Customer will pay a fee equal to 10% of the Rental charges and take reasonable precautions to protect the Equipment, and CLN will assume the risk of physical damage to, or loss due to theft where there is evidence of forced entry, of a portion of the Equipment EXCEPT FOR THE FOLLOWING RISKS WHICH ARE ASSUMED BY CUSTOMER:
- any loss or damage due to or caused by: RECKLESS, CARELESS OR ABUSIVE operation or use; THEFT of Equipment by Customer's employees, agents, representatives or persons to whom the Equipment was entrusted; VIOLATION of any of the terms of this transaction.
- any loss or damage resulting from: Customer's failure to undertake the normal servicing of the Equipment.
- any damage to the TIRES and TUBES
- the first $2,500 of the replacement or repair cost for each claim or loss or damage, as a result of THEFT BY BURGLARY, VANDALISM, MALICIOUS MISCHIEF, OR PHYSICAL DAMAGE not otherwise assumed by Customer.
This loss waiver does not encompass any accessories (such as hydraulic hoses, bits, points, extensions and similar items) each and all of which are Customer's complete and total responsibility. CLN's limited assumption of risk and waiver of claims against the Customer is also contingent upon: the Customer making a police report (where applicable) and submitting a copy of the police report to CLN within 10 days of the date of occurence; Customer's timely payment of all Rentals and other charges specified in this Agreement. CLN will be subrogated to all of the Customer's rights of recovery against any person, firm or corporation.
- If Customer fails to make any payment when due, attempts to sell or encumber the equipment, ceases to operate, institutes or has instituted against it proceedings under any insolvency law, makes an assignment for the benefit of creditors, fails to comply with any of the provisions of this agreement, any attachment, execution or writ of process is levied against the equipment or any of Customer's property, or if at any time CLN deems itself insecure or the equipment unsafe, Customer agrees to deliver the equipment to CLN. CLN or its agents may, without notice, enter the premises or job location occupied by the Customer without being a trespasser thereon and render the equipment inoperative or take possession of and remove said equipment without process of law. In the event of such default, Customer agrees to pay all rentals due, damages for the injury to the equipment, costs of removal of the equipment from the possession of Customer, freight charges, transportation charges, and other charges incurred in such removal and return to CLN at its place of business. In addition, CLN shall further have all the rights and remedies provided by the Business and Commerce Code of the State of Texas.