ProSource Machinery Terms and Conditions

PARTS RETURN POLICY – NEW STOCKED AND NON-STOCKED PARTS

Any part purchased may be returned for credit of the original purchase price, less 15% restocking charge for stock items, and a 25% restocking charge on non-stock items.

Provided they are:

new saleable condition
Accompanied by a corresponding invoice or packing list.
Returned within 20 days of purchase date.
Returnable to the manufacturer or our supplier

Non-Returnable Parts

Parts that are classified as “Made to Order” by our suppliers cannot be returned for credit.
Items listed below cannot be returned for credit:

1. Hoses or Hose assemblies

2. O-ring seals

3. Gaskets

4. Incomplete parts or opened parts kits.

5. Parts showing rust, dirt, damage, corrosion, or parts that show having been installed.

6. Electrical Parts

Freight / Delivery

All transportation charges are non-refundable.
All return shipping is the responsibility of the customer unless the return is due to a fault of ProSource Machinery, shipper, or manufacturer defect. If goods are damaged during shipping ProSource Machinery must be contacted within two days of receiving the damaged shipment to make a claim.
Return Requirements

To establish the date of purchase, complete information relative to invoice and part numbers must be furnished with the parts being returned.
Purchaser shall advise disposition on non-returnable parts within 20 days. We cannot be responsible for such parts after the 20-day period expires.

Backorders / Cancellations

All backorders will be shipped automatically once they arrive unless otherwise noted. Backorders can be canceled prior to shipment except for special order items. If not canceled in time, the customer is responsible for shipping charges if the material must be sent back to the supplier. The terms and conditions of returns for that supplier will apply including freight, restocking or any miscellaneous charges.

Cores

All cores must be returned, cleaned (within reason), drained of any oils, with visible part numbers within 30 days of purchase of replacement part. Some cores are also subject to reduced/no credit due to core conditions per the manufacturer’s policy.

ProSource Machinery is not liable for any cost due to installation, service calls, personal or material harm.

The above policies are subject to change without notice.

ENVIRONMETAL FEE
ProSource Machinery charges an Environmental Fee in order to meet the equipment needs of our valued customers, ProSource Machinery handles potentially hazardous materials like fuel, oil, cleaners, batteries, and sediment every day. Proper management of these materials and their by-products is expensive, but we are committed to protecting the environment and our communities. As a result, ProSource Machinery invests in solutions intended to minimize impacts to our environment and comply with Federal, State/Provincial, and local regulations, such as containing our potentially hazardous materials, treating our wash bay run-off/waste, and proper disposal or recycling of oil, filters, fluids, tires, batteries, and shop waste. The ProSource Machinery Environmental Fee is not a government mandated tax or fee. This fee helps offset a wide-range of environmental-related risks and expenses (direct and indirect) incurred through activity of our rental fleet, such as:

Waste disposal
Oil recycling
Fuel and fluid handling
Construction and operation of cleaning facilities
Treating our wash bay run-off/waste
Investment in low emission rental assets (i.e. Tier IV)
Labor costs related to environmental compliance
Governmental reporting
Administrative costs
This fee is not intended for any particular purpose or placed in an escrow account. It becomes part of ProSource Machinery revenue and is used at our discretion. This fee is intended to be added to each piece of rental equipment identified as having a potential for environmental impact. The current fee is 1% of the total rental rate charged.

RENTAL EQUIPMENT PROTECTION PLAN (REP)
•Rental Equipment Protection Plan is 14% of the Rental Rate (Forestry/Demolition purposes charged at 20%)

• By accepting Rental Equipment Protection Plan (REP), ProSource Machinery will limit the equipment repair or replacement cost to:

•The Customer’s Share of Repair is lesser of 10% of replacement value of the Equipment, 10% of the cost of repairs, or $1,000 plus state and local taxes.

Example of REP Savings

A $110,000 Excavator was damaged from a lightning strike.

With REP

W/O REP

Rental of Machine

$5,000

$5,000

Cost of REP

$700

N/A

Repair Cost

$7,000

$7,000

Customer Share Repair

$1,000

N/A

Total Customer Cost

$6,700

$12,000

REP Terms & Conditions

1. CUSTOMER’S GENERAL RESPONSIBILITIES

Customer agrees to abide by terms and conditions of ProSource Machinery Agreement which is responsibility to ProSource Machinery for all theft, loss of or damage to the equipment up to the amounts when a Customer’s Share of Repair is lesser of 10% of replacement value of the Equipment, 10% of the cost of repairs, or $1,00 plus state and local taxes. All Equipment will be valued under this Agreement, and the REP will be based on actual cost of repair, or if lost, stolen or damaged, the replacement cost of the Equipment at the time of its loss, theft or damage. Customer can only accept REP at or prior to the beginning of the rental term under this rental Agreement.

2. RENTAL EQUIPMENT PROTECTION PLAN

The “Rental Equipment Protection Plan” (“REP”) IS NOT INSURANCE, IT IS AN OPTION that ProSource Machinery offers you to limit your liability for theft, loss of or damage to the equipment you have rented. The benefit from REP is limited by the Customer’s Share of Repair shown above.

A. Customer’s responsibility for loss or damage will NOT be limited to the extent such loss or damage results from:
An Authorized Operator’s gross negligence or intentional acts causing such damage.
Striking overhead objects with the Equipment.
All loss and damage associated with vandalism, malicious mischief, theft or conversion of the Equipment not documented by Customer’s filing with the applicable public authorities (with an immediate written copy to ProSource Machinery) of a formal written theft, vandalism, or conversion police report within 24 hours of the loss. Failure to provide formal reports will void all benefits under the REP.
Leaving keys, if any, in the Equipment while the Equipment is not locked or otherwise secured, regardless of whether or not a report was filed;
Exposure to corrosive materials.
Boom damage from overloading of a boom or from a collision when the boom is in motion.
Customer’s failure to perform the basic maintenance required under the rental Agreement.
Customer’s failure to comply with any terms of the Rental Agreement.
Operating or storing the Equipment near hot debris or existing fire.
Use or operation of Equipment by other than an authorized Operator, which is someone who is properly trained to operate the equipment.
Operating or storing the Equipment that results in submersion of the Equipment in water or unstable soi
B. In the event of loss or damage to the equipment, you are required to cooperate with ProSource Machinery’s investigation of any incident involving the equipment and complete a REP incident report.
C. REP is optional and may be declined. If you do not accept REP you will be responsible for all damage(s), repair(s), and replacement(s) of/to the rented equipment at its/their full (NEW) replacement value and you must maintain the insurance coverage required by the rental agreement. If you elect to maintain insurance coverage, a certificate of insurance (COI) must be provided to ProSource Machinery

D. Recovery of Equipment: If lost or stolen equipment is later recovered, ProSource Machinery retains ownership of the equipment regardless of any payments made by you or your insurance company with respect to such equipment, all of which payments are non-refundable. You agree to promptly return any equipment that is recovered.

E. Subrogation: ProSource Machinery shall be subrogated to your rights to recover against any third person or entity relating to any loss, theft, damage or destruction to the equipment. You agree to cooperate with and assign to, ProSource Machinery all claims and proceeds arising from such loss, theft, damage, or destruction, execute and deliver to ProSource Machinery documents as may be required to do so, and take all other.

TERMS AND CONDITIONS OF PURCHASE AND SALE
In addition to the capitalized terms defined elsewhere herein, “Agreement” means the foregoing Purchase Agreement (“Page 1”) and these Terms and Conditions of Sale, taken together; “Equipment” or “Item(s)” means the “Equipment Purchased” as identified on Page 1, “Buyer(s)” (or “Buyer”) means the party(ies) identified as the “Buyer(s)” on Page 1 (also referred to herein as “you” and “your”); and “Seller” means ProSource Machinery, LLC, a Montana limited liability company (also referred to herein as “Seller,” “PSM,” “we,” “us” and “our”). PSM and Buyer(s) are sometimes referred to together herein as the “Parties” (each, a “Party”). In consideration of the promises and undertakings of the Parties set forth herein, and for other good and valuable consideration, the Parties acknowledge and agree as follows, each intending to be legally bound by their respective signatures appearing on Page 1:
1. Buyer(s) agree(s) to purchase from PSM, and PSM agrees to sell to Buyer(s), the Equipment, subject to the terms of this Agreement. Buyer has selected each Item of Equipment based on Buyer’s determination that it is appropriate for Buyer’s intended use, application and environment, and not based on any recommendation by PSM.
2. Buyer(s) jointly and severally agree to deliver to PSM the “Total Due” set forth on Page 1 (hereinafter referred to as the “Purchase Price”), along with any additional amounts owing for subsequently ordered additions or modifications (less any previously delivered deposit(s), but otherwise without reduction, setoff or counterclaim), upon or prior to Buyer’s receipt of the Equipment; provided that PSM will retain a first priority purchase money lien and security interest on all Equipment until PSM’s receipt of payment of the Purchase Price in full.

3. Provided that Buyer(s) fully and timely perform its/their obligations under this Agreement, PSM will apply any Purchase Price deposits received from Buyer(s) to the Purchase Price for the Equipment. Such deposit(s), if any: (a) will not bear interest; (b) will not be segregated or deposited into a separate account; (c) will not be deemed a limit of any Buyer’s liability to PSM; and (d) except only as provided in Section 4 hereof, are non-refundable.

4. Buyer(s) hereby confirm(s) that, within 24 hours after its/their receipt of the Equipment (the “Inspection Period”), Buyer(s) shall: (a) carefully inspect and examine each Item, and (b) notify PSM of any and all shortage(s), defect(s) and/or other nonconformity(ies) in writing (a “Defect Notice”), whereafter, PSM will have a reasonable time (not less than 30 days after receipt of any Defect Notice) to investigate the claim(s) made in the Defect Notice, and provided the claimed defect(s) is/are not the direct or indirect result, in whole or in part, of any Buyer’s: (i) breach of this Agreement by, or (ii) willful or negligent act or omission, PSM will, in its sole discretion: (A) replace the subject Item(s); (B) make any necessary adjustments, repairs and/or modifications thereto; or (C) retrieve such Item(s), cancel this Agreement, and refund the Purchase Price therefor, without being guilty of breach. The foregoing remedy is exclusive. BUYER(S) WAIVE(S) ALL OTHER RIGHTS, CLAIMS, DAMAGES AND REMEDIES ARISNG IN CONNECTION WITH THE FOREGOING, INCLUDING WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY AND PUNITIVE DAMAGES, as provided in Section 8. If a Defect Notice is not timely received by PSM, Buyer will be deemed to have fully, finally and irrevocably accepted all Equipment, and such Equipment will be deemed a “conforming delivery” as provided in Article 2 of the Uniform Commercial Code (“UCC”).

5. Each Buyer acknowledges that he/she/it is familiar with each Item of Equipment and its proper use, and that each Buyer has received, carefully reviewed, and is satisfied with, all available training, familiarization, instructions, operating and user manuals, warnings and other information (including all applicable EPA, OSHA, MSHA, ANSI, NFPA, IFC, ASME, ASSE, ASME AND IEEE Standards) regarding the proper and safe transportation, use, maintenance, repair and storage of such Item(s) (“Instructions”) provided by each such Item’s original manufacturer (“OEM”) and/or PSM. Each Buyer acknowledges and agrees that each Item of Equipment is to be used only for its intended purpose(s) (the purpose(s) for which it was designed and manufactured), in a reasonable and safe manner, and in full compliance with the Instructions and all applicable federal, state and local laws, rules and regulations. WARNING: USE, TRANSPORT, STORE, MAINTAIN AND REPAIR ALL EQUIPMENT ONLY AS PROVIDED ABOVE AND IN THE INSTRUCTIONS. ANY USE, TRANSPORTATION, STORAGE, MAINTENANCE AND/OR REPAIR FOR ANY PURPOSE OR IN ANY MANNER OTHER THAN AS SPECIFIED ABOVE AND IN SUCH INSTRUCTIONS, OR CONTINUED USE OF ANY EQUIPMENT THAT IS MALFUNCTIONING, DEFECTIVE OR DAMAGED, MAY RESULT IN PERSONAL INJURY(IES), INCLUDING DEATH, AND/OR PROPERTY DAMAGE.

6. PSM IS NEITHER THE MANUFACTURER NOR THE DESIGNER OF ANY EQUIPMENT. ACCORDINGY: (A) NO REPRESENTATION, PROMISE, GUARANTEE OR WARRANTY OF OR BY ANY MANUFACTURER, DESIGNER OR OTHER PARTY SHALL BE BINDING UPON PSM; AND (B) AS AGAINST PSM, EACH BUYER HEREBY WAIVES ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH CLAIMED DEFECTS (INCLUDING WITHOUT LIMITATION, WARNING, DESIGN AND MANUFACTURING DEFECTS) IN OR WITH RESPECT TO EACH ITEM OF EQUIPMENT PURCHASED.

7. WARRANTIES / WAIVER: Subject to the terms hereof, PSM agrees to: (a) make available to Buyer(s), to the extent permitted by the manufacturer(s) and applicable law, any and all applicable manufacturers’ warranties; and (b) reasonably assist Buyer(s) in submitting claims thereon at Buyer(s)’ sole cost and expense. EXCEPT ONLY AS EXPRESSLY SET FORTH ABOVE AND/OR REQUIRED BY APPLICABLE LAW, ALL EQUIPMENT IS PROVIDED “AS-IS” AND “WITH ALL FAULTS.” PSM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION, ANY WARRANTY(IES) OF SUITABILITY, MERCHANTABILITY, UTILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS, FREEDOM FROM INTERFERENCE WITH INTELLECTUAL PROPERTY RIGHTS, AND/OR WORKMANLIKE PERFORMANCE, AS WELL AS ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE) WITH RESPECT TO ANY EQUIPMENT OR RELATED SERVICE(S), ALL OF WHICH BUYER(S) HEREBY WAIVE(S) AND RE- LINQUISHE(S) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

8. Except only as provided in Section 4, to the maximum extent permitted under applicable law, each Buyer hereby waives any and all rights, claims and damages (including without limitation, those arising under the common law, the UCC, any other statute and/or otherwise) arising in connection with any use, failure of, or claimeddefect(s) in or with respect to, any or all of the Equipment, including without limitation, rights of return or rescission, lost time, lost profits, cost of cover, storage and/or shipping, personal injuries, property damage, incidental, consequential, special, exemplary and punitive damages (collectively, “Claims and Damages”).

9. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EACH BUYER: (A) ASSUMES ALL RISK OF PERSONAL INJURY, LOSS AND/OR PROPERTY DAMAGE IN CONNECTION WITH THE EQUIPMENT, INCLUDING WITHOUT LIMITATION, ANY AND ALL LIABILITIES, CLAIMS AND DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE SELECTION, MANUFACTURE, USE, DEMONSTRATION, OPERATION, LOADING, UNLOADING, STORAGE, SERVICING, MAINTENANCE, REPAIR AND/OR RETURN OF ANY EQUIPMENT, WHETHER OR NOT ANY BUYER’S FAULT; AND (B) HEREBY RELEASES AND DISCHARGES, AND AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS, PSM AND ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS, AGENTS, INSURERS, EMPLOYEES, REPRESENTATIVES, SUCCESSSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING WITHOUT LIMITATION, PERSONAL INJURIES, PROPERTY DAMAGE AND ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH ANY EQUIPMENT, EVEN IF ARISING FROM OR IN CONNECTION WITH PSM’S NEGLIGENCE OR CLAIMED NEGLIGENCE.

10. Each Buyer acknowledges that such Buyer is receiving a substantial benefit (a reduced Purchase Price), as a material portion of the consideration received by Buyer in exchange for the decreased risk to PSM resulting from the inclusion of the preceding waiver and indemnity, and other risk-shifting provisions, without which, a higher Purchase Price would be charged.

11. If any Buyer or any guarantor(s) of any Buyer’s obligations hereunder shall: (a) fail to fully and timely pay or perform any one or more of its/their obligations under this Agreement; (b) provide incorrect or misleading information to PSM; (c) become insolvent; or (d) die or cease conducting business; all Buyer(s) will be in default, whereupon PSM may, with or without legal process or notice, and without liability to any Buyer or guarantor: (i) terminate this Agreement; (ii) withhold and/or retrieve any Equipment; (iii) retain any and all prepayment(s) and deposits received from or on behalf of Buyer(s); (iv) recover its associated direct and indirect damages, costs and expenses (including without limitation, the Purchase Price and reasonable attorneys’ fees) from Buyer(s) and any guarantor(s), as joint and several obligors; and/or (v) pursue any other rights and/or remedies available hereunder, at law and/or in equity.

12. These Terms and Conditions of Sale shall be deemed to add to (and shall not limit or impair) the terms set forth on Page 1. All of Seller’s rights and remedies shall be deemed cumulative. All shipments from PSM will be deemed F.O.B. shipping point (Incoterms 2000), unless otherwise specifically agreed in writing by PSM. Buyer(s) shall fully and timely pay any and all taxes (including without limitation, federal, state, county, municipal and local sales, use, value added, transfer, and other taxes), fees, duties, and assessments arising in connection with any Item of Equipment and/or the transactions referenced herein. No Buyer shall assign this Agreement or any of its obligations arising hereunder without PSM’s express written consent. The provisions of this Agreement shall be limited only to the extent required by law, and shall be deemed severable. If any such provision is deemed invalid or unenforceable by any court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if such modification proves impossible, deleted, and the remaining provisions hereof shall continue in effect. This Agreement, together with the applicable Instructions, all of which are incorporated herein, sets forth the full and final agreement of the Parties. Except only as expressly provided above, this Agreement may be modified only by the Parties’ separate, written and mutually executed agreement. No pictures, samples, models, drawings, specifications, descriptions or advertisements constitute representations or warranties by PSM. PSM may, at its sole option, file of record a copy of this Agreement and/or one or more UCC-1 financing statements reflecting its security interest (if any) in the Equipment. Buyer(s) will pay all costs and expenses incurred by PSM (including reasonable attorneys’ fees) in recording and/or enforcing this Agreement. All amounts due hereunder but not timely paid will bear interest at the lesser of: (a) 18% per annum, or (b) the highest rate permitted under applicable law until paid. Anything to the contrary contained herein notwithstanding, PSM’s maximum liability to Buyer arising hereunder or in connection herewith shall be limited to the amounts actually paid by Buyer to PSM in exchange for the Equipment. Each Buyer authorizes PSM to investigate such Buyer’s credit history, and to charge all amounts due hereunder to any credit card provided by such Buyer. Each Buyer agrees to pay PSM a fee equal to the maximum lawful charge for: (a) any such credit card or charge that is declined; (b) any check provided by any Buyer which is returned unpaid; and (c) any payment delivered after the due date thereof. This Agreement: (a) is fair and reasonable under the circumstances; and (b) shall be interpreted under the laws of the State of Montana, with proper venue for any and all associated civil lawsuits and legal proceedings lying solely and exclusively in the federal and state courts located in or nearest to Yellowstone County, MT (unless waived by PSM). You consent and submit to such jurisdiction and venue and waive all claims that it constitutes an inconvenient forum. Each Buyer agrees to take such actions, and to execute and deliver all such documents, instruments and agreements (including credit applications and authorizations) as may be necessary or appropriate to give full effect to this Agreement. The Parties’ handwritten, digital, electronic, photocopied or facsimiled signatures on Page 1 hereof will be enforceable as originals for all purposes.

The Parties have carefully read, fully understand and hereby agree to the terms of this Agreement, and acknowledge that this Agreement represents the valid, enforceable and legally binding obligation and agreement of each of such Parties. Each Party further acknowledges having received a complete copy of these Terms and Conditions printed in at least 10-point font. PAGE 2