GENERAL. The terms and conditions of sale outlined herein apply to the sale by FirstPower Group LLC (“Seller”) of products, equipment and parts (“Products”) and services. Acceptance by the Seller of Purchaser’s order is expressly made conditional on purchaser’s agreement to these Terms and Conditions. These Terms and Conditions also serve as notice of Seller’s objection to and rejection of any terms and conditions of purchase or sale included in Purchaser’s purchase order or other writings that are different from or additional to these Terms and Conditions. Unless otherwise expressly agreed in writing by a duly authorized representative of Seller, these Terms and Conditions supersede all other communications and agreements. The Seller will not be bound by any modification to the Terms and Conditions until approved in writing by an officer of the Seller.
TITLE AND RISK OF LOSS. Title and risk of loss or damage to the Products will pass to the Purchaser upon tender of delivery F.O.B. shipping point, unless otherwise agreed upon by the parties except that a security interest in the Products will remain in the Seller, regardless of mode of attachment to realty or other property, until full payment has been made therefore. Purchaser agrees upon request to do all things and acts necessary to perfect and maintain said security interest and will protect Seller’s interest by adequately insuring the Products against loss or damage from any cause where the Seller will be named as an additional insured.
DELIVERY. Unless otherwise specifically agreed in writing, delivery dates will be interpreted as “estimated”. In no event will dates be construed as falling within the meaning of “time is of the essence”. Products are delivered F.O.B. shipping point. Where the scheduled delivery of Products is delayed by Purchaser or by reason of any of the contingencies referred to in Section 4, Seller may deliver such Product by moving it to storage for the account and at the risk of the Purchaser. Shipping dates are approximate and are based upon prompt receipt of all necessary information and approvals from Purchaser. Seller reserves the right to make delivery by installments, or make advanced shipments.
FORCE MAJEURE. The Seller will not be liable for loss, damage, detention or delay due to war, riots, civil insurrection, fire, flood, strikes or other labor difficulty, acts of civil or military authority including governmental laws, orders, priorities, or regulations, acts of the Purchaser, embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials or manufacturing facilities from mutual sources, or other causes beyond the reasonable control of the Seller. In the event of a delay due to any such cause, the date of delivery will be postponed by such length of time as may be reasonably necessary to compensate for the delay.
PAYMENT. If Purchaser fails to pay any invoice when due, Seller may deter deliveries under this or any other contracts with Purchaser, except upon receipt of satisfactory security for or cash in payment of any such invoice. Failure on the part of the Purchaser to pay invoices when due will, at the option of the Seller, constitute a default in addition to all other remedies Seller may have under these Terms and Conditions or applicable law. If, in the judgment of the Seller, the financial condition of the Purchaser at any time prior to delivery does not justify the terms of payment specified, Seller may require payment in advance, demand further assurances or cancel any outstanding order, whereupon Seller will be entitled to receive reasonable cancellation charges. If delivery is delayed by Purchaser, payment will become due on the date Seller is prepared to make delivery. Should manufacture be delayed by Purchaser, pro-rata payments will become due in and to the extent required of Seller by its contracts with the manufacturer. All installment deliveries will be separately invoiced and paid for without regard to subsequent deliveries. Delays in delivery or non-conformities in any installment will not relieve Purchaser of its obligations to accept and pay remaining installments.
PRICES AND TAXES. Prices to Purchaser will be confirmed in writing by the Seller. Seller may, upon thirty (30) days prior written notice to Purchaser, change prices or terms of sale affecting the Products. Prices do not include federal, state, or local property, license, privilege, sales, use, excise, gross receipts or other like taxes which may now or hereafter be applicable to , measured by, or imposed upon this transaction, the Products, their sale, their value or their use, or any services performed in connection therewith. Such taxes will be itemized separately to Purchaser, who will make prompt payment to the Seller. Prices do not include shipping charges which will be itemized separately and paid promptly by Purchaser unless otherwise noted by Seller in the written proposal.
ASSIGNMENT. Any Assignment by Purchaser of this contract or any rights hereunder, without the prior written consent of Seller by a duly authorized representative, are void.
WARRANTY. The Seller warrants that the Products manufactured by it and/or rebuilt by it will be free of defects in material and workmanship for a period of 12 months for the date of placing the equipment in operation or 18 months from the date of shipment, whichever shall first occur. The Purchaser will be obligated to promptly report any failure to conform to this warranty in writing to the Seller within said period. The Seller, at its option, may correct such non-conformity by suitable repair to such equipment, or furnish a replacement F.O.B. point of shipment. Seller will not be liable for any damage or failures to Products resulting from the Purchaser’s failure to store, install, maintain and operate the Products in accordance with good industry practices and in compliance with specific recommendations of the Seller. Products manufactured by others are not under warranty by the Seller, but will carry whatever warranty the manufacturer has conveyed to the Seller that can be passed on to the Purchaser. A copy of such warranties is available upon Purchaser’s request. The Seller will not be liable for any repairs, replacements, or adjustments to the Products or any costs of labor performed by the Purchaser or others without the Seller’s prior written approval. The effects of corrosion, erosion and normal wear and tear are specifically excluded from this warranty. THE SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Correction by the Seller of non-conformities, whether patent or latent, in the manner and for the period of time provided above, constitutes the sole remedy of the Seller for such non-conformities, regardless of whether the claim is based on contract, warranty, negligence, indemnity, strict liability or otherwise with respect to or arising out of such equipment. Warranty services for products may, at Seller’s option, be conducted at Seller’s place of business. Seller will pay normal shipping rates both ways. If the Seller determines that work for products is to be done at Purchaser’s location, parts will be provided free of charge.
LIMITATION OF LIABILITY. IN NO EVENT WILL SELLER BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, WHETHER IN WARRANTY, STRICT LIABILITY, CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF TOTAL OR PARTIAL USE OF THE PRODUCTS OR FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF PURCHASER FOR SUCH OTHER DAMAGES, WHETHER ON ACCOUNT OF PRODUCTS FURNISHED HEREUNDER OR DELAYS IN DELIVERY THEREOF OR SERVICES PERFORMED UPON OR WITH RESPECT TO SUCH PRODUCTS. The remedies of the Purchaser set forth herein are exclusive, and the total liability of the Seller with respect to this contract or the Products and services furnished hereunder, in connection with performance or breach thereof, or from the manufacture, sale, delivery, installation, repair or technical direction covered by or furnished under this contract, whether based on warranty, strict liability, contract, tort, negligence or otherwise, will not exceed the purchase price of the Products upon which such liability is based. All causes of action against Seller, arising out of or relating to this contract or the performance hereof, will expire unless brought within one year of time of accrual thereof.Purchaser will provide access to the work area (including reasonable access to necessary utilities) and Purchaser will ensure that the work area is reasonably safe and free of hazards, except those hazards which are normally and directly associated with the actual services being performed by Seller. Purchaser agrees to indemnify Seller from any damages or loss to Seller or Seller’s property, injuries to Seller’s employees or other claims against the Seller made by any person or entity or otherwise in connection with Seller’s on-site services except those damages, claims or losses arising out of the sole negligence of the Seller or Seller’s employees. Purchaser will maintain adequate property and liability insurance with respect to its facilities and will upon Seller’s request add Seller as an additional named insured under such policies. Purchaser will provide evidence of such insurance upon Seller’s request.
SERVICES. If Seller is to provide on-site services in connection with the sale of the Products such services will be provided in a workmanlike manner. Such services will be warranted in the same manner and with the same limitations as to warranties, remedies and liabilities as provided in paragraphs 8 and 9 above for Products. In connection with such onsite services:Purchaser will provide Seller with accurate plans and drawings regarding all Purchaser’s systems or equipment being service. Seller will not be responsible for any delays caused by Purchaser’s failure to provide Seller full, complete and continuous access to Purchaser’s facilities during the time such on-site services are to be performed. Purchaser will be responsible for increased materials and labor costs and, if applicable, room and board and transportation costs incurred by the Seller as a result of Purchaser’s failure to provide such access.
SET OFFS. Neither Purchaser nor any affiliated company or assignee will have the right to claim compensation or to set off any amounts which become payable to the Seller under this contract or otherwise.
PATENTS. The Seller, at its option, will have the right to defend any suit or proceeding brought against the Purchaser and will pay the adverse judgment entered therein, so far as such suit or proceeding is based upon the claim that the use of the Product manufactured by the Seller and furnished under this contract constitutes infringement of any patent of the United States of America, except where the product is manufactured in accordance with specifications furnished by the Purchaser, providing the Seller is promptly notified in writing and given authority, information and assistance for defense of same; and the Seller will, at its option, procure for the Purchaser the right to continue to use said Product, or to modify it so that it becomes non-infringing or to replace the same with non-infringing Products, or to remove said Product and to refund the purchase price. The foregoing will not be construed to include any agreement by the Seller to accept any liability whatsoever in respect to patents for inventions including more than the Products furnished hereunder, or in respect of patents for methods and processes to be carried out with the aid of said Product. The foregoing states the entire liability of the Seller with regard to patent infringement.
INFORMATION FURNISHED PURCHASER AND TECHNICAL ASSISTANCE. Any design, manufacturing drawing or other information or material submitted to the Purchaser and not intended for dissemination by Purchaser remain the exclusive property of Seller and may not without its consent, be copied or communicated to a third party. These drawings will be marked “proprietary”. Seller’s warranty will not be enlarged and no obligation or liability will arise out of Seller’s rendering of technical advice, facilities or services in connection with Purchaser’s order for the Products furnished.
TERMINATION. Any order or contract may be canceled by Purchaser only upon payment of reasonable charges (including allowance for profit) based upon costs and expenses incurred, and commitments made by Seller.
INVALIDITY AND NON-WAIVER. If any provisions herein or portion hereof will for any reason be held invalid or unenforceable, such invalidity or unenforceability will not affect any other provision or portion hereof. The waiver of any breach of the provisions herein will not be deemed to be a waiver of any subsequent breach hereof. APPLICABLE LAW. The rights and obligations for the parties will be governed by the laws of the State of Ohio. Purchaser consents to the jurisdiction of the courts of the State of Ohio and the Federal courts located there, with respect to any action brought in connection with this Agreement.
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