Northwest Electric, LLC, a Nebraska limited liability company (the “Company”) pursuant to the Sales Order (the “Order”) agrees either (i) to sell the goods described on the front cover of the Order (the “Equipment”) and/or (ii) to provide the services described on the front cover of the Order (the “Services”) upon the following terms and conditions.
1. TERMS AND PRICES.
(A) The price(s) and terms quoted in this Order are subject to the Customer returning to the Company this Order signed by an authorized representative of the Customer within a period of thirty (30) days from the date hereof, except that the Company shall have the right to reject or accept this Order in accordance with the provisions of this Order. All Order(s) are subject to the approval of the Company’s main office and shall not be binding upon the Company unless: (i) the Order is signed by an authorized representative of the Company, (ii) the Equipment is shipped to the Customer, or (iii) the Company commences performing the Services. The Company shall not be required to make any allowance to Customer for material, labor, or alterations made for its account unless authorized in writing by a duly elected and acting executive officer of the Company.
(B) Prepaid freight, if applicable, will be added to the price(s) contained in this Order and stated separately. Where the price(s) include transportation or other shipping charges, any increases in transportation rates following the date of the Order, any demurrage, special detention charges or other shipping charges incurred by the Company shall be for the account of and paid by the Customer. Unless specifically stated on the Order, price(s) do not include sales, excise, use, or value-added taxes, customs, duties, or fees. Such taxes, customs, dues, of fees shall be paid for by Customer in addition to price(s) reflected on this Order.
(C) If Customer requests changes in the Equipment to be provided or Services to be performed or delays progress of the Services or the manufacture or shipment of the Equipment, the price(s) stated on the Order shall be equitably adjusted to reflect increases in the selling price(s) caused thereby and any agreed delivery date of the Equipment or completion date of the Services shall also be similarly extended.
(D) Price(s) are subject to revision because of increases in material and labor cost during the period of manufacture if a price adjustment schedule is part of the Order.
(E) Typographical errors contained on this Order are subject to correction by the Company.
(F) The terms of payment are as set forth on the front page of the Order. Unless specifically addressed otherwise, Customer shall pay in full (including taxes and transportation from the F.O.B. shipping point) for each unit or units of Equipment shipped or portion of the Services performed within 30 days after either (i) receipt of an invoice from the Company or (ii) for Equipment, a bill of lading showing delivery thereof to a for-hire motor carrier, or other evidence of delivery to Customer.
2. WITHDRAWAL OR CANCELLATION OF ORDER.
Orders accepted by the Company are not subject to cancellation or modification except by mutual agreement and at cancellation charges as determined by the Company. Changes in instructions, drawings, plans, and specifications after acceptance of this Order are subject to an equitable price adjustment to be determined by the Company in good faith. However, when Equipment to be provided under an Order is ready for shipment and shipment is delayed or postponed through any causes beyond the reasonable control of the Company as described below, or at Customer’s request, the Customer shall arrange for storage of the Equipment covered by this Order other than at the Company’s facilities, unless by separate written agreement, Company agrees to store the Equipment. After shipment and when the Equipment is ready for installation (if applicable) or Services are ready to be performed, if installation of the Equipment or performance of the Services is delayed or postponed through any cause beyond the reasonable control of the Company as described below, or at Customer’s request, the Customer shall protect the Equipment or personal property or equipment related to the Services against damage from the weather or other causes, and in any case, the Customer shall assume the risk of loss or damage to the Equipment or personal property or equipment related to Services performed to date and shall be responsible for any costs incurred by the Company in connection with storage, reconditioning, or reworking needed relating thereto.
(A) The Company will endeavor to make shipment of Equipment or performance of Services as scheduled. However, all shipment, delivery, or completion dates are approximate only, and the Company reserves the right to reasonably adjust shipment, delivery or completion schedules.
(B) UNDER NO CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE OR INCUR ANY LIABILITY FOR COSTS OR DAMAGES OF ANY NATURE (WHETHER GENERAL, CONSEQUENTIAL, SPECIAL, AS A PENALTY OR LIQUIDATED DAMAGES, OR OTHERWISE) ARISING OUT OF OR OWING TO ANY DELAYS IN DELIVERY OF EQUIPMENT OR PERFORMANCE OF SERVICES.
(C) If shipment of Equipment or performance of Services is delayed or suspended by Customer, the Customer shall pay (i) Company’s invoice for the Equipment or Services performed prior to delay or suspension as per the payment terms contained in this Order, (ii) Company’s handling and storage charges then in effect until Customer makes arrangements for storage for the Equipment, and (iii) demurrage, special detention, and any related charges. In addition, any delay or suspension shall automatically extend any delivery or completion date relating to the Equipment or the Services.
(D) The Customer shall conduct any incoming inspection or tests on personal property or equipment related to Services performed or Equipment shipped to Customer within 10 days of the date of delivery to Customer. In the event of any discrepancy in or to the shipment of personal property or equipment related to Services or Equipment, Customer shall give prompt written notice thereof to the Company detailing the discrepancies found and shall furnish to the Company such written evidence or other documentation related to any such discrepancy as the Company may reasonably request.
4. LIMITED WARRANTY; EXCLUSIONS; REMEDY; LIMITATION OF LIABILITY.
(A) Limited Warranty. The Company warrants to Customer that the Equipment or Services, other than as provided below, will be free from defects in materials and workmanship as follows: (i) with respect to AC random wound stator windings in 284 to 449 T-Frame motors and 324 to 445 U-Frame motors, the warranty period shall be three (3) years; (ii) with respect to any mechanical repairs and rebuilding Services, the warranty period shall be one (1) year; and (iii) to the extent not covered in either (i) or (ii) above, the warranty period shall be one (1) year. All of the foregoing warranties shall commence from the earlier of (i) the date the Equipment or item or equipment related to the Services is placed into service, (ii) six (6) months after the Customer has received the Equipment or item or equipment related to the Services, or (iii) with respect to Services, the date such Services are substantially completed. Customer shall keep accurate and compete records of operation and maintenance during the warranty period and shall provide the Company access to those records.
(B) Third Party Manufactured Equipment, Components or Parts. Equipment, accessories, personal property, and other parts and components not manufactured by the Company are warranted only to the extent of and by the original manufacturer’s warranty to the Company. The Company agrees to provide Customer with a copy of each such warranty and if such warranty does not, by its terms, pass through to Customer, then to the extent contractually permitted, assign to Customer the warranties that the Company receives from the original manufacturer of the Equipment, other equipment, accessories, personal property, and other parts and components. Customer shall be solely responsible for compliance with the terms and conditions of any such original manufacturer warranty. In no event, however, shall such other manufacturer’s warranty expand, enlarge upon, or alter in any way the warranty obligations of the Company to the Customer as described in Paragraph 4(A).
(B) EXCLUSIONS FROM WARRANTY.
(I) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING ANY WARRANTIES BEYOND THE DESCRIPTION OF THE EQUIPMENT OR THE SERVICES DESCRIBED IN THE ORDER. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THIS PARAGRAPH 4 AND TO THE EXTENT PERMITTED BY LAW, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE EQUIPMENT OR THE SERVCIES. THE PROVISIONS OF THIS PARAGRAPH 4 AS TO DURATION, WARRANTY ADJUSTMENT AND LIMITATION OF LIABILITY SHALL BE THE SAME FOR BOTH IMPLIED WARRANTIES (IF ANY) AND EXPRESS WARRANTIES.
(II) The Company’s warranty is solely as stated in (A) above and does not apply or extend to (i) expendable items, ordinary wear and tear, altered units, units repaired by persons not expressly approved by the Company, (ii) materials not manufactured by the Company or services provided by third parties not authorized by the Company in writing, (iii) damage caused by accident, the elements, abuse or misuse, or (iv) damage due to improper installation, maintenance and operation or adverse electrical system conditions which can cause failures characterized by, but not limited to, damage from single-phasing, overload, locked rotor, inadequate ventilation, unbalanced voltage, voltage surge, and winding damage caused by bearing failure as well as the causes of user or electrical system-induced failures as set forth in the Electrical Apparatus Service Association Publication 585 OP 25M (items 1, 2, 9, 10, 11, 12).
(C) Remedy for Breach of Limited Warranty. The Company will, at its sole discretion, (i) repair or replace, F.O.B. shipping point, any Equipment or parts of the Equipment or (ii) re-perform any Services which are found to be defective in workmanship or material, during the warranty periods referenced above and provided the Customer notifies the Company in writing within ten (10) days of discovery of any alleged defect in the Equipment or the Services Any warranty adjustments made by the Company shall not extend the initial warranty period set forth above. The warranty period for replacements to the Equipment or any parts, components, accessories, or other equipment made by the Company shall terminate upon the termination of the initial warranty period set forth above. Expenses incurred by Customer for labor to replace or repair, or expenses to return, the Equipment or any part or parts to Company will not be reimbursed by the Company.
(D) Spare and Replacement Parts Warranty Adjustment.
When the Company sells spare and replacement parts this subparagraph (D) sets forth the warranty adjustment for such parts. Customer must make claim of any breach of any spare or replacement parts warranty by written notice to the Company’s home office within ten (10) days of discovery of any alleged defect for all such parts manufactured by the Company. The Company agrees at its option to repair or replace but not install, F.O.B. Company’s facilities, any part or parts it manufactures which within one (1) year from the date of delivery to Customer that Customer proves to the Company’s satisfaction (including return to the Company’s plant, transportation prepaid, for inspection, if required by the Company) is defective. The Warranty and warranty period for spare and replacement parts not manufactured by the Company (purchased by the Company from third party suppliers) shall be limited to the warranty and warranty adjustments extended to the Company by the original manufacturer of such parts to the extent such warranty may be passed through or contractually assigned; in no event shall such other manufacturer’s warranty create any more extensive warranty obligation of the Company to the Customer for such parts than the Company’s warranty adjustment covering parts manufactured by the Company as set forth in this subparagraph (D). Expenses incurred by the Customer for labor to replace or repair, or expenses to return, the spare or replacement parts will not be reimbursed by the Company.
(E) LIMITATION OF LIABILITY.
The remedy provision set forth in this Paragraph 4 shall be the Customer’s sole and exclusive remedy and the extent of the Company’s liability for breach of the limited warranty set forth herein or for breach of any other implied or express warranties, representations, instructions or defects from any cause in connection with the sale or use of the Equipment or the Services provided. This limitation of liability expressly prohibits the Customer from revoking its acceptance of the Equipment, spare and replacement parts relating thereto, or the Services. IT IS AGREED THAT COMPANY’S LIABILITY, WHETHER IN CONTRACT, UNDER ANY WARRANTY, INDEMNITY, IN TORT/EXTRA-CONTRACTUAL (INCLUDING NEGLIGENCE), IN STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF THE PURCHASE PRICE OF THE EQUIPMENT OR SERVICES DESCRIBED IN THIS ORDER THAT IS ACTUALLY PAID BY CUSTOMER OR IF CUSTOMER PLACES MULTIPLE ORDERS, THE PRICE ACTUALLY PAID FOR EACH SUCH ORDER FOR ALL CLAIMS OR LIABILITIES ARSING FROM OR RELATED TO EACH ORDER AND TEN THOUSAND DOLLARS ($10,000) FOR ALL CLAIMS OR LIABILITIES NOT PART OF ANY PARTICULAR ORDER. NOTWITHSTANDING ANY OTHER PROVISION IN THIS ORDER TO THE CONTRARY, IN NO EVENT SHALL THE COMPANY BE LIABLE, WHETHER ARISING UNDER CONTRACT, INDEMNITY, TORT/EXTRA-CONTRACTUAL (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR LOSS OF ANTICIPATED BUSINESS OR PROFITS; NON-OPERATION, REDUCED OPERATION OR INCREASED EXPENSE OF OPERATION; COST OF PURCHASED OR LEASED REPLACEMENT EQUIPMENT; COSTS DUE TO DELAYS OR DEFAULTS IN MAKING DELIVERY OF REPLACEMENT SERVICES OR EQUIPMENT OR ANY COMPONENT THEREOF; COST OF MONEY; LOSS OF USE OF CAPITAL OR REVENUE; LOSS OF CUSTOMER’S TIME; OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS ORDER OR ANY ORDERS PLACED BY CUSTOMER, REGARDLESS OF ANY ADVICE OR RECOMMENDATIONS THAT MAY HAVE BEEN RENDERED CONCERNING THE PURCHASE, INSTALLATION OR USE OF THE EQUIPMENT OR THE PERMFORMANCE OF THE SERVICES.
5. SECURITY INTEREST; INSURANCE.
(A) To secure payment of the purchase price, Customer agrees that the Company shall retain a security interest in the Equipment sold to it until the Customer shall have paid the full purchase price when due, plus any applicable interest at the highest lawful contract rate until so paid and if it becomes necessary, the costs of collection, including reasonable attorney’s fees. The Equipment shall at all times be considered and remain personal property and Customer shall perform all acts necessary to assure and perfect retention of the Company’s security interest against the rights or interests of third parties. In the event Customer defaults in payment of any part of the purchase price when due, or fails to comply with the provisions of the contract, the Company shall have the remedies available under the Uniform Commercial Code.
(B) From the date that risk of loss of and damage to the Equipment or Services passes to the Customer as provided above, and until the Equipment or Services are finally accepted and the price(s) paid in full, or until all obligations of the Company hereunder have terminated, the Customer shall provide and maintain insurance in the names of the Customer and the Company, as their interests may appear, to the total value of the Equipment or Services against risk of fire, lightning, windstorm, aircraft and explosion, or other casualty or builders’ risk and the proceeds of such insurance shall be applied to the cost of repairing and replacing the Equipment and work destroyed or damaged.
(C) In the event the Customer furnishes workmen for the unloading, transportation, loading, handling or erection of the Equipment to be furnished by the Company hereunder, or if the Company utilizes workmen paid directly by the Customer to perform the Services covered by this contract, then the Customer shall indemnify and hold harmless the Company from any and all injuries, including death, at any time resulting therefrom, and in connection with any damage to or loss of property sustained by the performance of such Services or resulting from the operation of such Equipment by the Customer prior to final acceptance, except such injury, death, damage, or loss as may result from negligent acts or omissions of the Company or its employees. The Customer shall at his own expense defend any and all suits brought against the Company alleging any such injury, death, damage or loss, even if such suit or suits are groundless, false or fraudulent. The Company shall not be responsible for damage to or loss of the Equipment furnished, or Services performed by the Company if so caused by employees of the Customer.
(D) The Company shall provide and maintain until completion of the Services in regards to the Order the following forms of insurance in respect to its own employees (but not in respect to any employee paid directly by the Customer, but utilized by the Company) in the following minimum amounts of coverage: Workmen’s Compensation Insurance, including Employer’s Liability Insurance, in accordance with the laws of the state in which the Company may be required to pay compensation in the minimum amount required by law; and Comprehensive General Liability Insurance, excluding products, with a combined bodily injury and property damage liability limit of $1,000,000 for each occurrence and $1,000,000 in the aggregate.
6. LOSS, DAMAGE, OR DELAY.
THE COMPANY SHALL NOT BE LIABLE FOR LOSS, DAMAGE, OR DELAY RESULTING FROM CAUSES BEYOND ITS REASONABLE CONTROL OR CAUSED BY STRIKES OR LABOR DIFFICULTIES, LOCKOUTS, ACTS OR OMISSIONS OF ANY GOVERNMENTAL AUTHORITY OR THE CUSTOMER, INSURRECTION OR RIOT, WAR, ACTS OF TERRORISM, COMPUTER VIRUSES, FIRES, FLOODS, FINANCIAL ECONOMIC CRISIS, ACTS OF GOD, BREAKDOWN OF ESSENTIAL MACHINERY, ACCIDENTS, PRIORITIES OR EMBARGOES, CAR AND MATERIAL SHORTAGES, DELAYS IN TRANSPORTATION, DAMAGE TO THE EQUIPMENT WHILE IN TRANSIT, OR INABILITY TO OBTAIN LABOR, MATERIALS OR PARTS FROM USUAL SOURCES WITH RESPECT TO THE EQUIPMENT OR THE SERVICES. IN THE EVENT OF ANY DELAY FROM SUCH SOURCES, PERFORMANCE WILL BE POSTPONED BY SUCH LENGTH OF TIME AS MAY BE REASONABLY NECESSARY TO COMPENSATE FOR THE DELAY. IN THE EVENT PERFORMANCE BY THE COMPANY OF THIS ORDER (WHETHER FOR THE DELIVERY OF EQUIPMENT OR PERFORMANCE OF SERVICES) CANNOT BE ACCOMPLISHED BY THE COMPANY DUE TO ANY ACTION OF GOVERNMENTAL AGENCIES, OR ANY LAWS, RULES OR REGULATIONS OF ANY GOVERNMENTAL AGENCY, THE COMPANY (AT ITS OPTION) MAY CANCEL THIS ORDER WITHOUT LIABILITY.
7. INFORMATION & WORK BY OTHERS.
(A)The Customer shall furnish the Company with any information, instructions, drawings, plans and specifications requisite to the manufacture of the Equipment or the provision of Services.
(B) The Company shall furnish no design drawings other than general arrangement drawings as are necessary for manufacture of the Equipment or the performance of the Services. In no event shall the Company have any design responsibility for the Equipment or the Services. If required, and agreed to by both parties, the Company shall furnish its drawings promptly and the Customer shall check, approve and return one set of drawings without delay.
(C) Only to the extent included in the Services, the Company, being only a supplier of the Equipment, shall have no responsibility for labor or work of any nature relating to the installation or operation or use of the Equipment all of which shall be performed by Customer or others. It is the responsibility of Customer to furnish such accessory and safety devices as may be desired by it and/or required by applicable law or OSHA standards respecting Customer’s use of the Equipment. Customer shall be responsible for ascertaining that the Equipment is installed and operated in accordance with all code requirements and other applicable laws, rules, regulations and ordinances.
(D) It is mutually agreed that where state laws or municipal ordinances require permits to install the Equipment or perform the Services covered by this Order, or the approval of the plans and specifications for the installation of the Equipment or performance of the Services, the Customer assumes the responsibility for securing the approval of said plans and specifications from the proper state or municipal authorities and for any required permit fees. If any changes are required in the Equipment or Services covered by this Order to meet the approval of state or municipal authorities, the Customer shall inform the Company of such changes and shall reimburse it for changes actually made to comply with the requirements of said authorities.
8. GOVERNING LAW AND RECOVERY OF FEES AND EXPENSES.
This Order is made and entered into in the State of Nebraska, County of Platte, and shall be construed in accordance with the laws of the State of Nebraska without regards to its choice of law rules. The parties agree that any cause of action or litigation involving the alleged breach or enforcement of this Order or any claim arising hereunder shall be filed exclusively in federal or state court in Platte County, Nebraska, and the parties hereby irrevocably consent to the jurisdiction and venue of any federal or state court in Platte County, Nebraska.
9. COMPLETE AGREEMENT; NON-WAIVER.
THE COMPLETE AGREEMENT BETWEEN THE COMPANY AND CUSTOMER IS CONTAINED HEREIN AND NO ADDITIONAL OR DIFFERENT TERM OR CONDITION STATED BY CUSTOMER SHALL BE BINDING UNLESS AGREED TO BY THE COMPANY IN WRITING, EXECUTED BY A DULY ELECTED AND ACTING OFFICER OF THE COMPANY. NO COURSE OF PRIOR DEALINGS AND NO USAGE OF THE TRADE SHALL BE RELEVANT TO SUPPLEMENT OR EXPLAIN ANY TERMS USED IN THIS ORDER. THIS ORDER MAY BE MODIFIED ONLY BY A WRITING SIGNED BY BOTH THE COMPANY AND CUSTOMER. THE FAILURE OF THE COMPANY TO INSIST UPON STRICT PERFORMANCE OF ANY OF THE TERMS AND CONDITIONS STATED HEREIN SHALL NOT BE CONSIDERED A WAIVER OF ANY SUCH TERM OR CONDITION OR ANY OF THE COMPANY’S RIGHTS.
If for any reason whatsoever, any one or more of the provisions of this Order shall be held or deemed to be inoperative, unenforceable or invalid as applied to any particular case or in all cases, such circumstances shall not have the effect of rendering such provision invalid in any other case or of rendering any other provision of this Order inoperative, unenforceable or invalid. This Order shall be construed without regard to any presumption or other rule requiring construction against the party causing the Order to be drafted.