Download PDF: NYMAT Terms & Conditions
Last Updated February 17, 2021
NYMAT MACHINE TOOL CORP.
SALE TERMS AND CONDITIONS AGREEMENT
This Sale Terms and Conditions Agreement (this “Agreement”) governs and controls
all sales made by NYMAT Machine Tool Corp., or any of its divisions, subsidiaries, or
affiliates (including, without limitation, Haas Factory Outlet) (collectively, “NYMAT”), to any
purchaser (“Purchaser” or “you”) of goods (“Products”) and/or services (“Services”) sold by
NYMAT. For purposes of this Agreement, NYMAT and Purchaser are each individually, a
“Party” and collectively, the “Parties”. By purchasing Products from NYMAT, whether via
accepting a Quotation (as defined below), placing a purchase order with NYMAT, using
NYMAT’s website, or otherwise, Purchaser agrees to and accepts, without limitation or
qualification, all of the following terms and conditions of this Agreement without modification:
- No Other Terms and Conditions. All sales of Products and Services to
Purchaser by NYMAT are subject to, and made solely upon, the terms and conditions set forth in
this Agreement, which will govern and control all sales of any Products or Services to Purchaser
by NYMAT, unless otherwise specifically agreed upon to the contrary in a separate written
instrument executed by NYMAT. Without limiting the generality of the foregoing, (a) no
representations or statements of any kind made by any representative of NYMAT that are not set
forth in this Agreement will be binding on NYMAT; (b) no course of dealing or usage of trade or
course of performance will be relevant to explain or supplement any of the terms and conditions
set forth in this Agreement; and (c) NYMAT, and the sale of Products by NYMAT, will not be
bound by or subject to any attempted exclusions or modifications to, or any additional or
different terms and conditions other than, the terms and conditions set forth in this Agreement,
whether by way of any Purchaser purchase order, request for proposal, acceptance, confirmation,
communication, course of performance, preprinted or other terms and conditions, contractual
document, or otherwise (collectively, “Purchaser Purchase Documents”). Furthermore, any
attempt by Purchaser to add to, exclude, or modify the terms and conditions set forth in this
Agreement are hereby deemed to be material alterations to this Agreement for which notice of
objection and rejection is hereby given to Purchaser by NYMAT and they will be of no effect.
Neither the submission of this Agreement nor anything contained in this Agreement will be
construed to be an acceptance or confirmation of any prior or subsequent Purchaser Purchase
Documents and this Agreement will be deemed a rejection and counter-offer with respect to any
such Purchaser Purchase Documents.
- Quotations. The parties acknowledge that NYMAT is not the manufacturer of
any of the Products and all Products are custom made goods as such term is defined in the
Uniform Commercial Code. All weights, measurements and other specifications of Products set
forth in Quotations, Orders and Acceptances are estimates based on information provided by the
manufacturer, and NYMAT shall not be responsible for any deviations therefrom. Brochures,
photographs and other illustrations depicting or describing Products are non-binding in detail,
and Purchaser acknowledges that such brochures, photographs and other illustrations may have
been superseded since being provided by the manufacturer. Purchaser acknowledges further that
manufacturers reserve the right to discontinue or to make changes to their products at any time,
and that the Products are subject to specification and/or design changes without prior notice.
Nothing contained in any descriptions of the Products set forth in any Quotation, Proposal,
Order, Acceptance or Other Documents shall expand or otherwise affect NYMAT’s warranty
obligations as set forth in Section 12. All quotations or quotes issued to Purchaser by NYMAT
for the sale of Products (“Quotations”) will be considered offers to sell such Products to the
proposed Purchaser identified therein. All Quotations are subject to this Agreement and to the
extent that the provisions of any Quotation and those of this Agreement are in conflict, the
provisions of this Agreement will supersede the provisions of the Quotation. All Quotations are
subject to revision in case of clerical error, whether in favor of Purchaser or NYMAT, upon
notice by either Party. The Manufacturer’s current price lists and specifications will control.
Any production estimates provided by NYMAT are not guarantees of actual production unless
specifically so stated in writing and signed by a duly authorized officer of NYMAT.
- Price. Prices are subject to change without notice at any time prior to NYMAT’s
acceptance of your order and are F.O.B. point of origin with transportation charges collect.
Prices quoted in a Quotation do not include sales, use, excise, property or similar taxes arising
out of relating to the sale, purchase, ownership or use of Products or Services, and all sales are
made subject to applicable taxes, the entire amount of which Purchaser agrees to pay. Purchaser
shall indemnify and hold NYMAT harmless from and against the imposition and payment of
such taxes. If a Quotation covers items of equipment or accessories additional to the basic
Products, which may be back ordered and subject to separate delivery dates, we may elect to
treat the contract as a divisible contract and in the event of such an election a separate invoice
shall be sent covering each delivery of equipment or accessories, and payment shall be due as
- Payment. Payment is due as quoted, subject to credit approval at time of
acceptance of order. If payment is made using a credit card, NYMAT may, at its option, charge
you a fee of 3% of the payment amount. If payment is not made as quoted, NYMAT may, at its
option, charge you interest on the unpaid balance at the rate of 2% per month until payment in
full is received. In the event this account is not paid within the terms of the purchase agreement
covering the above merchandise, NYMAT may place this account for collection and in such
event, you agree to pay all collection costs and reasonable legal fees incurred in connection
therewith. By your execution of a purchase order relating to the Products covered by any
proposal, you hereby grant to NYMAT a first priority security interest in such Products to secure
the purchase price thereof and you authorize NYMAT to file financing statements reflecting this
security interest without your signature thereon. In the case of leased or financed orders, the
final payment is due upon the sooner of Purchaser’s signing the delivery acceptance documents
or installation of the Products, but in no event later than 15 days from the shipment of the
- Delivery. The normal shipping date of the Products herein quoted, dates from the
receipt by NYMAT of an appropriate purchase order, and our acceptance of same, and with
respect to special items, dates from the receipt by us of all information necessary to the design
and manufacture of such equipment. Shipping schedules are not guaranteed and are best
estimate only. All shipments are subject to the unavoidable delays caused by strikes, accidents,
or other causes beyond our control, including any United States Government priority system. All
shipping schedules are subject to prior sale and should be confirmed with NYMAT at the time
the order is placed. In the event of delays in shipment due to customer’s request, payment shall
be due as quoted.
- Title; Risk of Loss. Delivery of the Products to carrier by manufacturer,
consigned, to you, shall constitute transfer of title, risk of loss, ownership, possession and
property in and to the Products, subject to any security interest, and such carrier shall thereafter
be deemed to be acting for you and the Products shall thereafter be at your risk.
- Ancillary Services. All Services requested by Purchaser will be provided at
NYMAT’s prevailing rates from time to time established, plus materials, parts, and expenses,
including without limitation, travel and living expenses, where applicable.
- Cancellation. You shall not countermand or cancel any order or cause work or
shipment to be delayed, except with the written consent of, and upon terms agreed to by,
NYMAT, and with full compensation to NYMAT for any loss sustained by reason of
cancellation. NYMAT has a right to cancel any and all orders placed by Purchaser upon breach
of the Agreement by Purchaser, or upon Purchaser’s failure to make any payment or deposit
when due hereunder or in the event of Purchaser’s insolvency or bankruptcy. No down payment
made by Purchaser to NYMAT will be returned in the event of cancellation.
- OSHA Warning. It is the Purchaser’s responsibility to provide necessary
devices, tools, means, noise protection and safety precautions to protect all personnel from
bodily harm resulting from the use, operation, set-up or servicing of the Products. Complete
compliance with the regulations of the Occupational Safety & Health Act, by law, rest with the
Purchaser. NYMAT does not either imply or warrant, under any circumstances, that the point of
operation will be guarded. It is the responsibility of the user of the Products to properly guard
the point of operation so that the operator cannot have any part of his body in the danger zone
during the operation cycle.
- Product Use. You agree to use, and require all persons operating the Products to
use, any and all proper, safe operating procedures set forth in operator’s manuals and instruction
sheets relating to the Products and any and all available, feasible and practical point of operation
safety devices consistent with your use of the Products and you agree that you will not remove or
modify any device, warning sign, operator’s manual or work with handling tools installed
thereon or attached thereto. You agree to notify NYMAT and the original manufacturer
promptly, in writing and in any event within 10 days after its occurrence, or any accident or
malfunction involving any Products which results in injury or death to persons or damage to
property or the loss of use thereof and you shall cooperate fully with NYMAT and the original
manufacturer in investigating and determining the cause of any such accident or malfunction. At
NYMAT’s request, you agree to permit NYMAT or the original manufacturer to redesign,
remodel or revise the Products at your place of business or that of the original manufacturer and
you agree to waive any claim of any kind against NYMAT or the original manufacturer which
may result from your inability to use the Products during the time the same is out of service for
such revision, modification or redesign. For good causes shown, NYMAT may waive the above
provisions relating to notice, investigations, revision, modification or redesign.
- Non-Solicitation. For a period of 1 year after the purchase of Products or
Services from NYMAT, Purchaser will not, directly or indirectly, solicit, hire, or otherwise retain
as an employee or independent contractor any employee or independent contractor of NYMAT
that is or was involved in the sale or provision of such Products or Services to Purchaser without
the prior written consent of NYMAT.
- Haas Tooling.
12.1 Returns. No returns will be accepted without prior written authorization.
Requests for returns must be submitted in writing within three (3) days of delivery. Return items
must be new, in the original packaging, and show no signs of wear, damage, abuse or alteration.
Failure to meet these conditions may cause denial of your return request. If we accept your
return, we will refund your purchase price, less the cost of shipping and a restocking fee equal to
twenty percent (20%) of the purchase price. Some items may not be eligible for return.
12.2 Order Discrepancies. It is your responsibility to inspect all products on
receipt to verify that they are consistent with your order. Order discrepancies must be reported
within forty eight (48) hours of receipt of the ordered products.
12.3 Deliveries. Depending on the method of shipment, we may require a
signature on delivery. If you request delivery with no signature required, NYMAT cannot be
held liable for any damage or loss for a package left without signature. If a delivery carrier that
you choose fails to deliver your order on time, or loses an order, we will file a claim on your
behalf, but will not be liable for the loss.
12.4 Proper Use. It is your responsibility to use all products in a responsible
manner, consistent with their intended purpose. NYMAT will not be liable for any products
used in an improper or dangerous manner, including, without limitation, products used beyond
their normal lifespan.
12.5 Accuracy of Web Site and Disclaimer. Haas Automation makes
reasonable efforts to assure accuracy of all matters appearing on their tooling web site, but
reserves the right to correct any errors that they discover, and to change or update information
from time to time. YOUR USE OF THIS WEB SITE AND ITS CONTENT IS AT YOUR
OWN RISK. ALL INFORMATION PROVIDED ON THIS WEB SITE IS PROVIDED “AS
IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE FOREGOING, HAAS MAKES
NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS,
SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEB
SITE, OR THAT THE WEB SITE OR ITS CONTENT WILL BE ACCURATE, RELIABLE,
ERROR-FREE OR UNINTERRUPTED. IN NO EVENT WILL NYMAT, HAAS, ITS
EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF
ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR
INABILITY TO USE, THE WEB SITE, ANY WEB SITES LINKED TO IT, OR ANY
CONTENT ON THE WEB SITE OR SUCH OTHER WEB SITES. HAAS WILL NOT BE
LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY VIRUSES OR OTHER
TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER
EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL.
13.1 MANUFACTURER’S WARRANTY. NYMAT IS NOT THE
MANUFACTURER OF THE PRODUCTS. ACCORDINGLY, NYMAT IS NOT MAKING
AND SHALL NOT MAKE ANY WARRANTIES WITH RESPECT TO PRODUCTS OTHER
THAN THAT NYMAT SHALL CONVEY TO PURCHASER GOOD AND MARKETABLE
TITLE THE PRODUCTS. OTHER WARRANTIES AVAILABLE TO PURCHASER ARE
THOSE, IF ANY, EXTENDED BY THE MANUFACTURER, TO THE EXTENT THEY ARE
IN FORCE AND EFFECT AND MAY BE ASSIGNED TO PURCHASER. NYMAT SHALL,
UPON WRITTEN REQUEST, ASSIGN TO PURCHASER ANY ASSIGNABLE RIGHTS
THAT NYMAT HAS UNDER THE MANUFACTURER’S WARRANTIES. THE
MANUFACTURER’S WARRANTY, IF ANY, AND NYMAT’S WARRANTY OF TITLE,
SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER
WRITTEN, ORAL OR IMPLIED BY LAW OR OTHERWISE, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR ANY
PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED BY NYMAT. NYMAT
DOES NOT ADOPT OR AFFIRM ANY WARRANTIES, EITHER EXPRESS OR IMPLIED
BY STATUTE, USAGE, CUSTOM OF TRADE, OR OTHERWISE (INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT), MADE BY ANY
MANUFACTURER, DEVELOPER, OR VENDOR OF THE PRODUCTS, OR ANY
COMPONENTS THEREOF, SOLD TO PURCHASER BY NYMAT. FURTHERMORE,
NYMAT DOES NOT MAKE ANY INDEPENDENT REPRESENTATIONS OR
WARRANTIES WITH RESPECT TO THE PRODUCTS SOLD TO PURCHASER BY
NYMAT. THE WARRANTIES, IF ANY, MADE BY ANY MANUFACTURER,
DEVELOPER, OR VENDOR OF THE PRODUCTS, OR ANY COMPONENTS THEREOF,
SOLD TO PURCHASER BY NYMAT ARE PURCHASER’S EXCLUSIVE REMEDIES
WITH RESPECT TO THE PRODUCTS SOLD TO PURCHASER BY NYMAT.
13.2 NYMAT’s Warranty for Services. NYMAT warrants that any Services
provided will be performed in a workmanlike manor. This Warranty is exclusive and is in lieu of
all other warranties whether written, oral or implied by law or otherwise, all of which are
disclaimed by NYMAT. Except for NYMAT’s limited warranty set forth above in this Section,
NYMAT does not provide any other warranties of any kind with respect to any Products or
Services sold or otherwise provided to Purchaser by NYMAT, either express or implied by
statute, usage, custom of trade, or otherwise, including, without limitation, the implied warranties
of merchantability, fitness for a particular purpose, title, and non-infringement.
- Limitation of Liability and Damages. In no event will NYMAT be liable to
Purchaser or any person or entity claiming through Purchaser for any indirect, consequential,
incidental, special, punitive, exemplary, or other similar damages resulting from, arising out of,
or related to this Agreement, any alleged or actual breach of this Agreement, or any Products or
Services sold or otherwise provided to Purchaser by NYMAT, whether arising under contract,
breach of warranty, tort, negligence, strict liability, enterprise liability, product liability, any
other theory of liability, or otherwise, and whether or not NYMAT has been advised of the
possibility of such damages or such damages are otherwise foreseeable (including, as examples
of such damages, but not in limitation thereof, personal injury or death, loss of use, privacy,
business information, data, revenue, profits, or goodwill, damage to business or business
relations, business interruption, procurement of substitute Products, Services, or facilities,
economic losses, property damage, or attorneys’ fees and disbursements). Without limiting the
generality of the foregoing and notwithstanding anything else in this Agreement or otherwise to
the contrary, NYMAT’s maximum aggregate liability, direct or otherwise, to Purchaser or any
person or entity claiming through Purchaser, if any, resulting from, arising out of, or related to
this Agreement, any alleged or actual breach of this Agreement, or any Products or Services sold
or otherwise provided by NYMAT (including, without limitation, the use of the Products or such
Services by Purchaser or any other person or entity) will not exceed the total amount of the
purchase price paid by Purchaser to (and actually received by) NYMAT for such Products or
Services sold to Purchaser by NYMAT giving rise to such liability.
- Time Limit to Bring Claim. Purchaser hereby agrees that regardless of any
statute or law to the contrary, any claim or cause of action that Purchaser may have against
NYMAT arising from, connected with, or related to this Agreement, any alleged or actual breach
of this Agreement, or any Products or Services sold or otherwise provided to Purchaser by
NYMAT (including, without limitation, the use of the Products or such Services by Purchaser or
any other person or entity) must be filed against NYMAT in the appropriate court of law located
in Monroe County, New York within 1 year after such claim or cause of action arose or such
claim or cause of action will be forever barred.
- Notice Regarding Limitations, Disclaimers, and Exclusions. The two parties
hereto agree, Notwithstanding anything in this Agreement or any statute, regulation or public
policy to the contrary, the limitations, disclaimers, and exclusions set forth in Sections 13.2, 14,
and 15 of this Agreement apply to the maximum extent permitted by applicable law, and are not
intended to deprive Purchaser of any mandatory protections provided to Purchaser under
- Indemnification. To the fullest extent permitted by law, except to the extent
attributable to the willful misconduct or gross negligence of NYMAT, Purchaser will, at
Purchaser’s sole expense, indemnify, defend, and hold harmless NYMAT and NYMAT’s
officers, directors, managers, members, shareholders, agents, representatives, successors, and
assigns (the “Indemnifiable Parties”) from and against any and all Losses (as defined below)
resulting from, arising out of, or related to: (a) any breach of or any inaccurate, false, or
fraudulent representation or warranty made by Purchaser in this Agreement; (b) any breach or
default in the performance of any covenant or agreement made by Purchaser in this Agreement;
(c) the use of the Products or services sold or otherwise provided to Purchaser by NYMAT by
Purchaser or any other person or entity; or (d) any willful misconduct or unlawful or negligent
acts or omissions of Purchaser. The Indemnifiable Parties will provide reasonable notice to
Purchaser of any claim asserted by a third party against the Indemnifiable Parties that may give
rise to a claim for indemnification pursuant to this Section and Purchaser will take up the defense
of such claim. The Indemnifiable Parties will provide reasonable assistance to Purchaser as
reasonably necessary for Purchaser to defend any such third-party claim, provided that the
Indemnifiable Parties will have the right to fully participate in such defense at their own expense.
Purchaser will have the right to settle the matter upon written consent of the Indemnifiable
Parties, which consent will not be unreasonably withheld. For purposes of this Section, “Losses”
means any and all losses, damages, penalties, expenses, costs, court costs, professional fees
(including, without limitation, reasonable attorneys’ fees and disbursements), interest,
disbursements, judgments, liens, and liabilities of any kind or nature whatsoever (including,
without limitation, claims for the injury to or the death of any person or the damage to any
property (including, without limitation, loss of use thereof)).
- Miscellaneous Provisions.
18.1 Enforcement of this Agreement. If Purchaser breaches or defaults in the
performance of any covenant or agreement made by Purchaser in this Agreement, Purchaser will
pay NYMAT for all costs and expenses (including, without limitation, reasonable attorneys’ fees
and disbursements, internal legal costs, court costs, expenses of investigation, and expert fees)
incurred by NYMAT in connection with NYMAT’s enforcement of its rights under this
Agreement or collection of any amount due NYMAT pursuant to this Agreement, whether or not
suit is brought. This Section will survive the termination of this Agreement.
18.2 Assignment. Purchaser will not assign this Agreement or any of its rights
or obligations hereunder, whether voluntarily, involuntarily, by operation of law, or otherwise,
without the prior written consent of NYMAT, which consent will not be unreasonably withheld.
Any proposed assignment in contravention of this Section will be null and void.
18.3 Force Majeure. NYMAT will not be liable to Purchaser for NYMAT’s
failure to perform any of its obligations under this Agreement (other than the payment of any
amount due Purchaser pursuant to this Agreement) during any period in which its performance is
delayed by circumstances beyond its reasonable control (including, without limitation, acts of
God, strikes, walkouts, lockouts, freight embargo, riots, civil disturbance, acts of war, acts of
terrorism, acts of a public enemy, laws, regulations, or other government proclamations,
ordinances, or acts, quarantine, epidemics, unusually severe weather, power failures,
earthquakes, floods, fires, explosions, or other catastrophes) or directly resulting from any failure
of Purchaser to perform its obligations under this Agreement. If NYMAT claims force majeure,
then it will be excused for non-performance for as long as its performance is so prevented,
delayed, or hindered due to force majeure.
18.4 Governing Law; Jurisdiction. This Agreement will be governed by, and
interpreted and construed in accordance with, the laws of the State of New York, one of the
United States of America, without regard to the principles of conflict of laws, and will be binding
on the Parties in the United States and worldwide. Any suit or proceeding related to this
Agreement will be commenced exclusively in the state or federal courts located in Monroe
County, New York, and each Party irrevocably consents to the exclusive jurisdiction and venue
of such courts. No local, general, or trade custom or usage or course of prior dealings between
the Parties will be relevant to supplement any term used in this Agreement.
18.5 Notices. Any notice, consent, demand, or other communication required
or permitted under this Agreement will be in writing, addressed to the Party that the same is
directed using the address previously provided by Purchaser to NYMAT (or such other address
as the Party may designate by like notice from time to time), and deemed delivered to and
received by the Party that the same is directed for all purposes as of the date that such notice is:
(a) actually received by the Party that the same is directed, if delivered personally; (b) 1 business
day after it was sent, if sent by reputable overnight courier service; or (c) 3 business days after it
is deposited in a regularly maintained receptacle for the deposit of U.S. mail, if sent by registered
or certified U.S. mail, postage and charges prepaid.
18.6 Revisions. NYMAT, in its sole and absolute discretion, may modify these
terms and conditions at any time and from time to time. The terms as in effect at the time of
NYMAT’s acceptance of any Purchase Order shall govern the terms of the sale of any Product or
18.7 No Waiver. Failure on the part of any Party to insist upon strict
compliance with any of the terms, covenants, or conditions of this Agreement will not be deemed
a waiver of such term, covenant, or condition, nor will any waiver or relinquishment of any right
or power under this Agreement at any one or more times be deemed a waiver or relinquishment
of such right or power at any other time or times.
18.8 Severability. If any provision of this Agreement is finally determined to
be unenforceable, invalid, or ineffective in any action, suit, or proceeding, such provision will be
automatically reformed and construed so as to be valid, operative, and enforceable to the
maximum extent permitted by law or equity while preserving its original intent. The
determination that any provision of this Agreement is unenforceable, invalid, or ineffective in
any action, suit, or proceeding will not affect the enforceability of the remainder of this
18.9 Binding Effect. This Agreement is binding upon and will inure to the
benefit of the Parties and their respective legal representatives, heirs, executors, successors, and
18.10 No Third-Party Beneficiary. This Agreement is intended solely for the
benefit of the Parties and does not create or grant any right in a person or entity who is not party
to this Agreement.
18.11 Headings. The headings in this Agreement are inserted as a matter of
convenience only and will not be used to interpret or construe any provision of this Agreement.
18.12 Construction; General Interpretive Principles. Whenever the context may
require, any pronoun used in this Agreement will include the corresponding masculine, feminine,
or neuter forms and the singular of nouns, pronouns, and verbs will include the plural and vice
versa. This Agreement shall not be construed against any Party by reason of the fact that the
Party may be responsible for the drafting of this Agreement or any provision hereof. For
purposes of this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (a) references in this Agreement to “Sections”, “paragraphs”, and other
subdivisions without reference to a document are to designate Sections, paragraphs, and other
subdivisions of this Agreement; (b) the words “herein”, “hereof”, “hereunder”, and other words
of similar import refer to this Agreement as a whole and not to any particular provision; and (c)
the terms “include” and “including” will mean without limitation by reason of enumeration.
18.13 Entire Agreement. This Agreement contains the entire agreement of the
Parties with respect to the subject matter hereof and supersedes all prior agreements and
communications, written or oral, relating thereto.