1. Buyer purchases the equipment “AS IS” and “WHERESOEVER LOCATED”, without representation or warranty of any kind. Aggreko makes no representation or warranty, express or implied, as to any matter whatsoever, including, but not limited to (a) the condition, design, or quality of the equipment; (b) the fitness of the equipment for use or for a particular purpose; (c) the merchantability of the equipment; (d) compliance of the equipment with the requirements of any laws, rules, specifications, industry standards or contracts pertaining thereto; (e) patent infringement; (f) latent defects; (g) the quality of the material or workmanship of the equipment; (h) the conformity of the equipment to the provisions and specifications of any purchase order relating thereto; (i) any and all redhibition claims and/or (j) any other representation or warranty of any kind, express or implied, with respect to the equipment. Buyer also acknowledges that Aggreko has made no representation or warranty of any kind, nature or description, express or implied, with respect to the operation, use or performance of the equipment.
2. Buyer represents that Buyer has examined the equipment, is familiar with and accepts the same in its present condition and assumes all risks incident to it and no claim will be considered for allowance or adjustment or for rescission of the sale based on failure of the equipment to correspond with the standard expected.
3. Buyer, at Buyer’s own cost and expense, shall remove the equipment from its present location at times and in a manner satisfactory to Aggreko, all within a period of five (5) days from and after the date first written in this agreement.
4. AGGREKO SHALL HAVE NO LIABILITY TO BUYER OR ANY PERSON WHOMSOEVER FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE (INCLUDING ATTORNEY FEES AND COURT COSTS) OF ANY KIND OR NATURE, WHETHER SPECIAL, CONSEQUENTIAL, ECONOMIC OR OTHERWISE, CAUSED OR ALLEGED TO BE CAUSED DIRECTLY, INDIRECTLY, INCIDENTALLY, OR CONSEQUENTIALLY BY THE EQUIPMENT OR ANY PART THEREOF OR PRODUCTS THEREFROM, BY ANY INADEQUACY OF THE EQUIPMENT OR DEFECT OR DEFICIENCY THEREIN, BY ANY INCIDENT WHATSOEVER ARISING IN STRICT LIABILITY OR OTHERWISE FROM AGGREKO’S OR BUYER’S NEGLIGENCE OR OTHERWISE, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED, OR ARISING OUT OF THIS AGREEMENT OR THE EQUIPMENT.
5. BUYER SHALL INDEMNIFY AND HOLD AGGREKO HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, EXPENSES (INCLUDING LEGAL EXPENSES AND ATTORNEY FEES), DAMAGES, LOSSES, LIABILITIES ACTUALLY OR ALLEGEDLY INCURRED OR SUFFERED BY BUYER, ITS AGENTS, EMPLOYEES OR ANY OTHER PARTY, HOWEVER CAUSED, RESULTING DIRECTLY OR INDIRECTLY FROM OR PERTAINING TO THE MANUFACTURE, PURCHASE, DESIGN, DELIVERY, POSSESSION, USE, PERFORMANCE, AND/OR OPERATION OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO SUCH CLAIMS, COST, EXPENSE, DAMAGE, LOSS AND LIABILITY ARISING FROM THE DEATH OR INJURY OF ANY PERSON, DAMAGE TO ANY EQUIPMENT, AND ANY INCIDENTAL, CONSEQUENTIAL AND INDIRECT DAMAGES, INCLUDING STRICT LIABILITY IN TORT. BUYER SHALL GIVE AGGREKO PROMPT WRITTEN NOTICE OF ANY MATTER TO BE INDEMNIFIED AGAINST AND AGREES THAT, ON WRITTEN NOTICE BY AGGREKO OF THE ASSERTION OF SUCH A LOSS, CLAIM, ACTION, DAMAGE, OR LIABILITY, BUYER SHALL ASSUME FULL RESPONSIBILITY FOR THE DEFENSE OF THE ACTION.
6. AS A MATERIAL INDUCEMENT FOR THE SALE OF THE EQUIPMENT, BUYER WARRANTS AND REPRESENTS THAT IT SHALL NOT DIRECTLY OR INDIRECTLY CAUSE THE EQUIPMENT TO BE USED FOR RENTAL PURPOSES. Buyer further unconditionally agrees that if Buyer sells or otherwise transfers all or any portion of the Equipment, then Buyer shall prepare a bill of sale covering the Equipment so sold and such bill of sale shall expressly include a provision substantially identical to this Section 6, and expressly provide that Aggreko, LLC, shall be entitled to rely on and enforce said provision. It is the intent of the parties that this Section 6 shall be applicable to Buyer and ANY subsequent vendee of the Equipment or successor in interest thereto, regardless of degree removed from this initial transaction. For purposes hereof, Buyer shall be deemed to have caused the Equipment to be used for rental purposes if Buyer, any affiliated person, business or entity or any successor in interest to the Equipment causes the equipment to be used for rental purposes. Buyer expressly acknowledges that in the event of a breach or a threatened breach of this provision, the remedy at law would be inadequate and that Aggreko shall be entitled to an injunction restraining such breach without the necessity of posting bond, in addition to monetary damages and any other remedy provided by law or in equity. The undertakings herein shall not be construed as any limitation upon the remedies aggreko might have at law or in equity on the absence of this agreement. BUYER FURTHER AGREES TO INDEMNIFY, DEFEND AND HOLD AGGREKO HARMLESS FOR ANY DAMAGES CLAIMED BY ANY PARTY RESULTING FROM AGGREKO’S ENFORCEMENT OR SEEKING TO ENFORCE THIS PROVISION.
7. Buyer assumes and shall bear the entire risk of loss, damage to, theft or destruction of the equipment, from any and every cause whatsoever.
8. Buyer shall be responsible for all taxes, liens, charges, and encumbrances that now exist or hereafter are incurred, assessed, or imposed on the equipment or as a result of the ownership or sale of the equipment. Buyer hereby agrees to hold Aggreko harmless from and against any and all taxes, liens, charges and encumbrances that are now existing or are hereafter incurred, assessed or imposed on the equipment or as a result of the ownership of the equipment.
9. This agreement constitutes the entire agreement between Buyer and Aggreko, and supercedes any representations, warranties or agreements (written or oral) heretofore made or entered into between the parties relating to the Equipment. This agreement shall be governed by the laws of the State of Louisiana. The parties hereto submit to the jurisdiction of the 16th Judicial District Court in and for Iberia Parish, Louisiana and hereby irrevocably consent to the jurisdiction of the Court listed above, and shall be bound by any judgments rendered thereby after all appeals taken.
10. If any provision of this Agreement shall otherwise contravene or be invalid under the laws of any state or other jurisdiction where it is applicable but for such contravention or invalidity, such contravention or invalidity shall not invalidate all of the provisions of this Agreement, but rather this Agreement shall be reformed and construed as not to contain the such provision or provisions, but only to the extent that they are contravening or are invalid under the laws of that state or jurisdiction. All other provisions of the Agreement shall remain in full force and effect.