TERMS AND CONDITIONS OF SALE – EQUIPMENT
THE FOLLOWING TERMS AND CONDITIONS (“TERMS AND CONDITIONS” OR “AGREEMENT”) SHALL GOVERN THE ENTIRE RELATIONSHIP BETWEEN UTEC, INC. ( “UTEC”) AND THE PURCHASER OF ANY UTEC PRODUCT (“CUSTOMER”) INCLUDING, BUT NOT LIMITED TO, ALL NEGOTIATIONS, ORDERS, ACCEPTANCES, SALES, AND DELIVERIES.
Effective as of November 1, 2022
- PAYMENT, PRICE, AND TAXES. Payment shall be made NET 30 DAYS FROM DATE OF INVOICE. If shipments are delayed by Customer, payments may become due from the date when UTEC is prepared to make shipment but not before the date originally specified by Customer. UTEC reserves the right to require cash payment or other alternative method of payment prior to shipment or completion of work if UTEC determines, in its sole discretion, that Customer’s or Customer’s assignee’s financial condition at any time does not justify continuance of the net 30 days payment term. UTEC further reserves the right to withhold shipments and/or completion of work if UTEC determines, in its sole discretion, that Customer’s account is past due pursuant to the payment terms outlined herein or otherwise not maintained in current and good standing In addition to the price, the Customer shall also pay UTEC any taxes or government charges arising from this Agreement. If Customer claims that any such taxes or government charges do not apply to the transactions governed by this Agreement, Customer shall provide UTEC with acceptable tax exemption certificates or other applicable documents. Notwithstanding anything to the contrary, UTEC expressly reserves the right to change and/or modify the price of any product and will invoice Customer at the applicable product price at the time of shipment. All past due invoices will accrue interest at the lesser of 1% per month or the maximum amount allowable by law.
- BLANKET PURCHASE ORDERS. A blanket purchase order is an order for an amount of product to be delivered at a later period in time. UTEC treats blanket purchase orders – including, but not limited to, the price, quantity and any terms & conditions contained therein – as an administrative convenience and forecasting tool only and non-binding on UTEC. Notwithstanding anything to the contrary, UTEC expressly rejects any blanket purchase order that Customer intends to create any binding obligation(s). UTEC reserves the right to recover costs and expenses incurred, and purchases or contract commitments made by UTEC, in reasonable reliance on Customer’s blanket purchase order.
- EXTRAS. Work and material in addition to or different from that stated herein, and changes in drawings, specifications or time of performance, shall be considered as extras, and shall entitle UTEC to an adjustment in price and the delivery schedule.
- RETURNS. Products may be returned only with the prior written authorization of UTEC in its sole discretion and subject to such restocking fee as UTEC may establish; it being understood, without limiting the generality of the foregoing, that custom-ordered products may never be returned. “Custom-ordered” or “Custom Products” are defined as products which have been purchased or made specifically for a given Order, including non-standard products that are not listed on UTEC’s current company price lists at the time the return is requested, unique customer-configured products, or custom original equipment manufacturer (“OEM”) products. UTEC will refuse to accept any products returned to it without a valid Returned Material Authorization number assigned by UTEC. All products returned to UTEC must be shipped with shipping charges prepaid.
- SHIPMENT. All shipments shall be F.O.B. shipping point. Where UTEC arranges for shipment, Customer shall reimburse UTEC for all costs associated with transportation from the shipping point upon UTEC’s submittal to Customer of an invoice therefore. Shipment dates quoted are approximate. UTEC does not guarantee a particular date for shipment or delivery. Title and risk of loss will pass to Customer when accepted for shipment by the freight company.
- PARTIAL SHIPMENT. UTEC shall have the right to ship any portion of the equipment included in this Agreement and invoice Customer for such partial shipment.
- EXCUSABLE DELAYS; FORCE MAJEURE. Shipping dates are estimates only, and UTEC in no way guarantees that ordered products will be shipped in accordance with estimated shipping schedules. Without limiting the generality of the foregoing, UTEC may delay delivery of products without any liability therefore as a result of any delay caused by events outside UTEC’s reasonable control that would in any way impair UTEC’s ability to deliver the products in the quantities ordered at the prices quoted. In addition, UTEC shall not be liable for delays in manufacturing, shipping, or delivery by causes beyond the control and without the fault or negligence of UTEC, including but not restricted to acts of God, acts of a public enemy, acts of government, sabotage, national emergency, extreme weather, inability to obtain necessary materials or components, acts of terrorism, fires, floods, epidemics, pandemics, quarantine restrictions, freight embargoes, supplier delays, strikes, or labor difficulties (collectively “Force Majeure Events”). In the event of a Force Majeure Event, UTEC shall not be in breach and shall have the right in its sole discretion, and upon notice to Customer, to delay or terminate such delivery. UTEC agrees to notify Customer in writing as soon as practicable of the causes of such delay. If delivery is delayed for more than sixty (60) days, either UTEC or Customer may (by written notice) cancel an order without liability with respect to any products remaining undelivered, provided that the remaining provisions of this Agreement shall remain unaffected. In the event that any materials or equipment to be provided by UTEC under this Agreement become permanently unavailable as a result of a Force Majeure Event, UTEC shall be excused from furnishing such materials or equipment.Use of certain UTEC products is dependent on the availability and coverage of wireless networks, telecommunications networks, positioning systems, and the Internet, which involve facilities that are owned and operated by third parties. UTEC will not be responsible for damages caused to Customer or any third party to the extent arising from the unavailability, termination, or performance degradation of or limits in wireless networks, wireless coverage, positioning systems, the Internet, any other third party systems or facilities, or other conditions beyond UTEC’s reasonable control.
- WARRANTY. UTEC warrants that all equipment manufactured by UTEC will be free from defects in material and workmanship. UTEC shall at its option repair or replace, F.O.B. point of sale, any part determined by UTEC to be defective within eighteen (18) months from date of manufacture. UTEC does not warrant products not manufactured by UTEC, but it does pass on to Customer any available manufacturer’s warranty for those products. UTEC’s obligation to repair or replace any defective parts during the warranty period shall be Customer’s exclusive remedy. UTEC shall not be responsible for labor charges for diagnosis, removal or reinstallation of defective parts, for charges for transportation, handling, and shipping, or for repairs required as a consequence of faulty installation, misapplication, abuse, improper servicing, unauthorized alteration or improper operation by persons other than UTEC. THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY DISCLAIMED.
- LIMITATION OF LIABILITY. Under no circumstances shall UTEC be liable for any incidental, special, or consequential damages, including loss of revenue or profits, loss of use of equipment or facilities, or economic damages based on strict liability or negligence. UTEC’s maximum liability for any reason (except for personal injuries caused by UTEC’s gross negligence) shall not exceed the sum of all amounts paid by Customer to UTEC under this Agreement over the prior twelve (12) month period (net any rebates or credits).
- CANCELLATIONS; DEFERRED ORDERS; STORAGE. Notwithstanding UTEC’s acknowledgment of a purchase order, fulfillment of a purchase order is subject to final approval by UTEC, and prior to shipment UTEC may, in its sole discretion, cancel any purchase order, or part thereof, for any or no reason. In the event of a shortage of supply or other relevant reasons, UTEC reserves the right to limit supply of products among orders in its sole discretion. Except as expressly set forth below, Customer may only cancel or modify this Agreement (including, but not limited to, price, quantity or delivery date) with UTEC’s prior written consent and upon payment of reasonable cancellation and/or modification charges as determined by UTEC in its sole discretion. Such charges shall take into account costs and expenses incurred and purchases or contract commitments made by UTEC and all other losses due to the cancellation or modification including a reasonable profit (“Cancellation and/or Modification Charges”).For non-Custom Products only, where UTEC has increased the price of those non-Custom Products on a given Order, Customer may cancel such Order (or relevant part of the Order) within 5 business days of written notification of such price increase by UTEC. For other cases involving non-Custom Products, Orders may be canceled by Customer prior to shipment by at least 45 days prior notice, subject to a Cancellation and/or Modification Charge as determined by UTEC in its sole discretion.For Custom Products, Orders cannot be cancelled by Customer – they can only be deferred or modified. Orders may be deferred or modified prior to shipment by at least 45 days prior notice, subject to Cancellation and/or Modification Charges and such revision in price or charge for work already in progress as may be determined by UTEC in its sole discretion.
- CLAIMS. Any suits arising from the performance or nonperformance of this Agreement, whether based upon contract, negligence, and strict liability or otherwise, shall be brought within one (1) year from the date the claim arose.
- GOVERNMENT PROCUREMENTS. The components, equipment and services provided by UTEC are “commercial items” as defined in Section 2.101 of the Federal Acquisition Regulations ("FAR"), and the prices of such components, equipment and services are based on UTEC’s commercial pricing policies and practices (which do not consider any special requirements of U.S. Government cost principles, FAR Part 31, or any similar procurement regulations). As such, UTEC will not agree to provide or certify cost or pricing data, nor will UTEC agree to comply with the Cost Accounting Standards (CAS). In addition, no procurement regulations, such as FARs or DFARs, shall apply to this Agreement except those regulations expressly accepted in writing by UTEC..
- HAZARDOUS MATERIALS. If UTEC encounters any asbestos or other hazardous material while performing this Agreement, UTEC may suspend its work and remove its employees from the project, until such material and any hazards associated with it are abated. The time for UTEC’s performance shall be extended accordingly, and UTEC shall be compensated for the delay.
- RELATED SERVICES. Any and all services that may be provided by UTEC will be provided during regular working hours of regular working days unless otherwise agreed. UTEC shall not be required to perform tests, install any items of equipment or make modifications that may be recommended or directed by insurance companies, government, state, municipal or other authority.
- SUBSTITUTION. Should conditions render any material(s) or product(s) unavailable, a substitute deemed by UTEC to be functionally equivalent will be offered, and in the event Customer refuses to accept such substitution, UTEC’s obligation hereunder shall be suspended until such time as the item or an acceptable substitute can be supplied and the price adjusted accordingly.
- PRESCRIBED USE. UTEC disclaims any liability whatsoever if the material and/or equipment herein described is used in any nuclear facility or weapons production application of any kind without UTEC’s written consent.
- INDEMNITY. Customer hereby agrees to indemnify, defend, and hold harmless UTEC in connection with any loss, liability, claim, settlement payment, interest, award, judgment, damages, fines, penalties, cost and expense, including without limitation reasonable attorney’s fees and arbitration, mediation and expert fees and any recall costs and expenses, arising out of or relating to Customer’s negligence; misuse; improper installation, storage, maintenance, or use of the products; changes, alterations, or additions to the products; or components implemented into the products.
- INTELLECTUAL PROPERTY RIGHTS. “Industrial” or “Intellectual Property Rights” means rights in patents, utility models, trade or service marks, trade names, copyrights (including rights in computer, firmware, software, and databases) and moral rights, design rights, inventions, discoveries, confidential information, rights in know-how, and rights to all or any other industrial or intellectual property, in any format now known or hereafter devised, whether or not registered or capable of registration including, where the context allows, applications for the grant of any of the foregoing and the right to apply for any of the foregoing, and all rights or forms of protection having an equivalent or similar effect to any of the foregoing which may now exist or are hereafter created in any part of the world (“IPR”). All IPR in products, designs, documentation, data, processes, methods, and other intellectual property that is owned, claimed, designed, developed, generated, or produced by UTEC in connection with this Agreement will be and remain the sole and exclusive property of UTEC and will not be deemed to be “works made for hire” or “commissioned works.” Without limiting the foregoing, UTEC reserves the right to use such items for others, and to license the use of such items to others.
- SOFTWARE LICENSE. “Software” shall mean any proprietary software of UTEC provided for the ordinary operation of the UTEC products, any optional software to enhance the operation of the UTEC products, and any upgrades or revisions of the same provided by UTEC in fulfillment of this order or at Customer’s request in relation to UTEC products. Customer is granted a limited license for any Software and related user documentation delivered by UTEC whether as part of any product or provided separately. This limited license allows Customer to: a) use the Software and user documentation only on the products on which it is installed at the time of delivery or, if the Software is supplied separately, in connection with the particular UTEC products intended for use with such software as supplied by, UTEC and b) in accordance with the terms of any end user license agreements or other license terms and conditions that may be included with the Software. Customer may not distribute copies of Software or documentation to others. Customer may not decompile,reverse-engineer, disassemble, or otherwise reduce the Software to human-perceivable form or create derivative works.
- REVERSE ENGINEERING. Customer shall not extract, decompile or reverse engineer any software included with, incorporated in, or otherwise associated with the hardware and shall not reverse engineer any reports or analytics provided to or received by Customer from UTEC.
- COMPLIANCE WITH LAWS. Customer represents, certifies, and covenants that it will comply with all laws applicable to the purchase of products contemplated or provided under this Agreement, including, but not limited to, any national, international, federal, state, provincial, or local law, treaty, convention, protocol, common law, regulation, directive, or ordinance, and all lawful orders, including judicial orders, rules, and regulations issued thereunder, as well as any and all applicable laws on data collection, data protection and privacy.
- GOVERNING LAW; VENUE. The laws of the State of Indiana shall govern this transaction, without giving effect to any laws, rules, or provisions that would cause the application of the laws of any jurisdiction other than the State of Indiana. The United Nations Convention on Contracts for the International Sales of Goods (CISG) does not apply to this Agreement. In the event of a dispute involving this Agreement, any legal proceeding must be heard and determined exclusively in a Indiana State court or a federal court sitting in Allen County, Indiana. Customer hereby waives any objection to venue, including on the ground of forum non conveniens, to bringing a legal action in Indiana. Customer shall not bring any legal action relating to or arising out of this Agreement except as permitted in this Section.
- WAIVER; SEVERABILITY; HEADINGS. The failure to insist on any right, or to invoke or elect any remedy, shall not be construed as a waiver of that right, remedy or election in the absence of a writing signed by UTEC. The invalidity of one or more of the phrases, sentences, clauses, or paragraphs contained in this Agreement shall not affect the validity of the remaining portions. Section headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
- SUPERSEDURE, ASSIGNMENT AND MODIFICATION. This Agreement, together with any UTEC software license agreement to the extent that it may apply, contains the complete and exclusive statement of the agreement between the parties and supersedes all previous or contemporaneous, oral or written, statements. Customer may assign this Agreement only with UTEC’s prior written consent. No modification to this Agreement shall be binding unless in writing and signed by both parties.
UTEC’S ACCEPTANCE OF CUSTOMER’S ORDER(S) IS ON THE CONDITION THAT THESE TERMS AND CONDITIONS SHALL APPLY AND SHALL CONSTITUTE THE COMPLETE AGREEMENT BETWEEN THE PARTIES. THE FAILURE OF UTEC TO OBJECT TO PROVISIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT OF CUSTOMER SHALL NOT BE CONSTRUED AS A WAIVER BY UTEC OF THE TERMS IN THIS AGREEMENT OR AN ACCEPTANCE OF ANY OF CUSTOMER’S TERMS AND CONDITIONS OR SIMILAR PROVISIONS. UTEC HEREBY OBJECTS TO AND REJECTS ANY CONFLICTING OR ADDITIONAL TERMS OR CONDITIONS SET FORTH BY CUSTOMER IN A PURCHASE ORDER OR OTHER DOCUMENT AND SHALL NOT BE BINDING UPON UTEC.