TERMS AND CONDITIONS OF SALE Seller is herein referred to as N C Machinery Co., Tractor & Equipment Co., N C Power Systems Co. or any of its affiliated member companies.1. Agreement. Unless otherwise agreed in a written document signed by authorized personnel of Seller, these Terms and Conditions of Sales and Service (“Terms”) govern the purchase of goods (including, but not limited to, new and used equipment, trucks, attachments, components, technology, and parts) (“Goods”) and services (“Services”) from Seller by any individual or entity that purchases such Goods or Services from Seller (“Buyer”). The placing of an order with Seller, the completion of an online transaction with Seller, Buyer’s acceptance of any quote, proposal, or other document issued by Seller with respect to the Goods or Services, or the receipt or acceptance of Goods or Services by Buyer constitutes Buyer’s acceptance of these Terms exactly as written. Seller hereby rejects the terms of any purchase order or other document submitted by Buyer, unless the document is signed by an authorize employee of Buyer. The supply of Goods or Services by Seller to Buyer shall not constitute acceptance by Seller of the terms of any purchase order or other document submitted by Buyer.2. Order and Delivery of Goods or Services. Order and Delivery of Goods or Services. All orders for Goods and/or Services are subject to credit approval and final acceptance by Seller in its sole discretion. Buyer shall have no right to cancel purchase orders for Goods once a purchase order is issued to Seller, nor shall Buyer have the right to cancel an online purchase once the order is placed. Buyer hereby agrees that their respective Order is an offer to buy, under and in accordance with these Terms and Conditions of Sale, all Products in said order. All Orders must be accepted by Seller or Seller shall not be obligated to sell the products to you. Seller may choose to not accept any orders in its sole discretion. After Seller received your order, Buyer will receive an email that confirms receipt of said order and includes details relating to said order (the “Order Confirmation”). Acceptance of Buyer’s order shall not take place unless and until Buyer has received the Order Confirmation; provided, that your Order is still subject to cancellation as provided in this Agreement. Upon issuance of the Order Confirmation, these terms and conditions will be the contract of sale for Buyer’s order. Some parts may be returnable to Seller in accordance with Seller’s then current parts return policy. Buyer acknowledges that estimated delivery dates for Goods are estimates only; actual delivery dates depend on a variety of factors, including, but not limited to, the production schedules of manufacturers. Seller shall use commercially reasonable efforts to meet estimated delivery dates and shall keep Buyer advised of the status of its delivery, but Seller shall have no liability for any loss associated wit h delay in the delivery of Goods. In addition, Seller shall have no liability for any delay in performance of Services or delivery of Goods caused by any circumstances beyond its reasonable control, including, but not limited to, delays caused by acts of God, acts of war or terrorism, fire or other casualty, storms or adverse weather, epidemics, strikes, labor shortages or disturbances, shortages of materials, restraints or delays affecting carriers, manufacturer delays, theft or vandalism, transport and handling accidents, or revisions to laws, regulations or governmental requirements.3. Pricing. Unless otherwise specified by Seller, the price for new parts shall be Seller’s list price for such parts on the date the parts are ordered; the price for a new machine shall be Seller’s list price for such machine on the date the machine ships from the factory; and the labor rates for Services shall be Seller’s standard labor rates for the applicable type of Service (field rates, shop rat es, mine rates, or specialty rates, as applicable) in effect at the time the Services are performed. Pricing for future orders is subject to change without notice. Buyer will promptly pay to Seller any taxes that Seller is required to collect with respect to the purchase of Goods and/or Services, including, but not limited to, value added, personal property, sales, use and similar taxes (“Taxes”). For any Taxes from which Buyer claims exemption, Buyer shall provide Seller with properly completed exemption certificates and any documentation needed to validate the exemption prior to the purchase of the applicable Goods and/or Services. If Buyer fails to provide an appropriate exemption certificate and supporting documentation, Buyer hereby agrees to remain liable for all such Taxes and will indemnify Seller for any liability related to the same. Title to purchased Goods shall pass to Buyer upon payment in full for the Goods. Risk of loss for purchased Goods is FOB Buyer’s site, unless pu rchased Goods are shipped to Buyer directly from the manufacturer, in which case risk of loss is FOB factory. Any claims for shortages, damages, or delays in shipping must be made by Buyer directly to the carrier.4. Loss in Shipment. Seller's responsibility for shipment shall cease upon delivery to carrier, and any claim for shortage, delay or damage occurring there shall be made by Buyer directly to the carrier. Any claim against Seller for shortages in shipments shall be made within fifteen (15) days after receipt of shipment.5. Limited Warranty and Disclaimer. Each item of New Equipment identified on the reverse side hereof is entitled to the benefits of such warranties are made in writing by the manufacturer thereof, as set forth on the manufacturer's warranty form in effect on the date of delivery. The term "New Equipment" means any items of equipment or parts that are registered or registerable as new equipment for purposes of the warranty provided by the manufacturer thereof. All other warranties of equipment or parts not specifically identified as Component Exchange Assembly ("CEX") on the reverse side hereof are "Used Equipment". Seller warrants any CEX described on the reverse side hereof to be free from defects and material and workmanship for a period of six (6) months following the date of delivery to Buyer. EXCEPT FOR A WARRANTY OF TITLE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ITEMS OF NEW EQUIPMENT. EXCEPT FOR A WARRANTY OF TITLE BY SELLER, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ITEMS OF USED EQUIPMENT, AND BUYER AGREES THAT HE HAS PURCHASED ALL SUCH ITEMS "AS IS" AND WITH ALL FAULTS AND DEFECTS.6. Warranty Procedure. Buyer shall promptly notify Seller of any claim under any applicable warranty (such notice to be in addition to compliance with the procedural requirement of the manufacturer's warranty}, and shall make the affected item available for inspection at a repair and service facility of Seller or in the field, at Seller's direction and election. Any such notice with respect to CEX must be given no later than two (2) weeks following the expiration of the applicable warranty period. If Seller determines that a defect in a CEX exists, Seller will, at its option, repair or replace the defective CEX. Any replacements or repairs to be made by Seller with respect to CEX or with respect to New Equipment (as warranty representative of the manufacturer) shall be made at a repair and service facility of Seller or its designee during regular business hours. The cost of transportation of the affected item to/from Buyer's facility from/to Buyer's facility from/to the service facility of Seller or its designee and the cost of Seller’s personnel traveling to and from the location of the affected item and related costs shall be borne solely by Buyer, whether or not a defect is determined to exist. The failure of any item purchased hereunder to fulfill any applicable warranty shall not affect t he liability of Buyer to Seller for the purchase price of that item or any other obligation of Buyer to Seller. Improper use of lack of proper maintenance by the Buyer shall render this warranty void.7. Exclusion of Liabilities, Disclaimer and Release. THE FOREGOING WARRANTIES FOR NEW AND USED EQUIPMENT AND CEX ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF NC AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY ITEM PURCHASED HEREUNDER, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OR TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SELLER (WHETHER ACTIVE, PA SSIVE OR IMPUTED); AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY EQUIPMENT.SELLER SHALL HAVE NO OBLIGATION OF LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE) OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, ADDITIONAL COST INCURRED BY BUYER AT HIS PLANT OR IN THE FIELD (WHETHER BY WAY OF CORRECTION OR OTHERWISE), CLAIMS BY BUYER, BUYER'S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY ITEMS PROVIDED HEREUNDER.8. Payment Terms. Terms Net. A service charge will be assessed on past due amounts at a rate determined by the Seller from time to time and set forth in its statements and/or other documents. All prices posted on this Site are subject to change without notice. The price charg ed for a product will be the price reasonably determined by Manufacturer to be in effect at the time the order is placed and will be set forth in Buyer’s Order Confirmation. Price increases will only apply to orders placed after such increases are shown on the prices in this site. Posted prices do not include taxes or other governmental fees or charges (the “Taxes”) or charges for shipping. All such Taxes and shipping charges will be added to Buyer’s merchandise total and will be itemized in Buyer’s shopping cart and in Buyer’s Order Confirmation. The Taxes and shipping charges included in the Order Confirmation will be calculated using the information available at the time of the Order Confirmation; however, said Taxes and shipping charges may change prior to the final order fulfillment and issuance of the Shipping Confirmation due to changes in the source of said fulfillment and any changes to the information used to calculate the Taxes. The Seller is not responsible for pricing, typ ographical or other errors on this Site or offered by the Seller and the Seller reserves the right to cancel any orders arising from such errors. Upon receipt of the order, Seller will confirm to its reasonable satisfaction that Buyer have the credit available to pay for the order and a hold will be placed against Buyer’s credit card in the amount of the order before issuance of the Order Confirmation. Seller will receive full payment at the time of the issuance of the Shipping Confirmation by collection of the funds through the applicable credit card. The Seller accepts the forms of payment listed on this Site for all purchases. All credit card processing is performed by a third-party processor. Buyer acknowledge that the credit card and related financial information Buyer provide in connection with Buyer’s order will be provided to such third-party processor, and Buyer expressly authorize and grant Seller permission to share such information, which may include, but not be limited t o, credit card and any other personal information Buyer may provide in connection with Buyer’s order. Buyer represents, warrants and agrees that (i) the credit card or payment information Buyer supplies in connection with the order is true, correct and complete, (ii) Buyer are duly authorized to use such credit card or other authorized form of payment for the purchase, (iii) charges incurred by Buyer will be honored, as applicable, by Buyer’s credit card company or the company supporting your payment, and (iv) Buyer will pay the amount set forth in the Shipping Confirmation, as well as all applicable Taxes and shipping charges.9. Collection. In the event Seller refers this matter to any attorney or other agent for collection, Buyer agrees to pay all costs of collection including reasonable attorney's fees.10. Invalidity. Each provision of this shall be considered separable and, if, for any reason, any provisions herein is determined to be invalid, such invalidity shall not imp air or otherwise affect the validity of the other provisions of this agreement. If any provisions is deemed to be invalid, it shall be modified, if possible, to the extend necessary to remove such invalidity.11. Privacy Statement. Buyer consents to the collection, use, retention and disclosure of information by Seller and any affiliated entities and hereby agrees that such information may be accessed by the Seller and their affiliates, manufacturers and third parties for a legitimate business reason to access and utilize same. Buyer further agrees that such information may be accessed by the Buyer and/or its member companies and affiliates and their partners and manufacturers with a legitimate business reason to access it, as well as third parties who may process such information on their behalf. The Seller’s Privacy Policy is available here for full review.12. Choice of Law. These Terms shall be governed by and construed in accordance with the laws of the State of Washingto n without giving effect to conflict of law provisions. The parties agree that exclusive jurisdiction and venue for any proceeding at law or in equity will be in the state or federal courts located in King County, Washington. Each party knowingly, voluntarily, irrevocably, and unconditionally waives its right to a jury trial of any claim or cause of action based on or arising out of the purchase of Goods or Services from Empire (including, but not limited to, contract, tort, breach of duty, and all other common law and statutory claims). Each party (a) understands that this is a waiver of an important legal right, and (b) acknowledges having had a reasonable opportunity to discuss this waiver and its effects with legal counsel.13. Dispute Resolution. All disputes, claims and controversies relating in any way to Buyer’s use of this Site, or to any Products sold by or distributed through this Site, or otherwise arising out of or relating to these Terms of Sale will be resolved by bin ding arbitration, rather than in court, except that Buyer may assert claims in small claims court if your claims qualify. Any dispute resolution proceedings under or arising out of these Terms of Sale will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration both Buyer and Seller waive any right to a jury trial. Buyer and Seller also both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.14. Title and Risk of Loss. Title and risk of loss will pass to Buyer (a) in the case of shipment, upon delivery of the Products to the shipping address listed in the Shipping Confirmation, and, (b) in the case of pick up at the Seller’s location listed in the Shipping Confirmation or otherwise agreed to by the Seller, upon delivery of the Product to Buyer or Buyer’s representative at such location. Shipping and de livery dates are estimates only and cannot be guaranteed. The Seller is not liable for any delays in shipments.