Terms and Conditions of Sale
1. Acceptance
These Standard Terms and Conditions (the “Standard Terms”) are incorporated into, and are a part of, each purchase order or other agreement relating to goods and services sold or provided by Peaker Services, Inc. (the “Seller”) to a third party (the “Buyer”), whether expressed in written form, by electronic data interchange or otherwise (each such purchase order or other agreement is referred to herein as a “Contract”). The Standard Terms supersede all printed forms and conditions set forth on any purchase order, release, acknowledgement, confirmation, requisition, work order, shipping instruction, specification or similar document or communication used by Buyer. Seller objects to any terms and conditions appearing in Buyer’s purchase orders which modify (materially or otherwise), contradict or are in addition to the Standard Terms. Seller may delete from Buyer’s forms any printed matter which is inconsistent with any of the Standard Terms, including any statement that purports to reject additional or varying terms or conditions or to limit acceptance to the terms contained in Buyer’s purchase order. Acceptance of Seller’s offer to provide goods and services is expressly limited to the Standard Terms.
2. Warranty
Seller warrants that the goods to be delivered to Buyer (other than incorporated parts free issued by Buyer) will be of the kind and quality described in the Contract and will be free of defects in workmanship and material. To make a claim for breach of the foregoing warranty in respect of any goods delivered by Seller to Buyer under the Contract, Buyer must (a) notify Seller of the breach in writing within one year[1] after the date of the sale of the goods to Buyer, and (b) return the goods to Seller with all forwarding transportation charges prepaid. If Seller (a) substantiates that the goods have been stored, installed, maintained and operated in accordance with Seller’s recommendations and standard industry practice, and (b) after inspection, determines that a breach of the foregoing warranty has occurred, then Seller shall correct any defects by suitable repair or replacement. Seller’s sole obligation under this warranty, direct, indirect or otherwise, is expressly limited to the replacement or repair of the goods, at Seller’s option, at its plant in Green Oak Township, Michigan. Seller shall return all goods subject to the warranty to Buyer F.O.B. Brighton, Michigan. In no event shall Seller be obligated to any person for the cost or expense of any labor or materials expended by Buyer or any other person to repair or alter any goods. Any component requiring repair or replacement shall carry a one-year warranty starting from the date the unit is again returned to service after such correction. Correction of the defect in workmanship and materials, in the manner and for the period of time provided above, shall constitute fulfillment of all of Seller’s obligations and liabilities to Buyer with respect to, or arising out of, such goods, whether Buyer’s claims are based on contract, negligence, breach of warranty, strict liability, tort or otherwise. THIS WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PURPOSE OR OTHER WARRANTY OF QUALITY, WHETHER EXPRESS OR IMPLIED, EXCEPT OF TITLE AND PATENT INFRINGEMENT.
A term of other than one year may only be provided by express agreement through an addendum to this contract.
3. Return of Products and Order Cancellation
Peaker Services Inc. will accept returns of normally stocked Goods for a period of thirty (30) days following shipment for exchange or refund of the purchase price; provided, that Goods must be in their original cartons, unopened and unused and are subject to a return inspection. Appropriate restocking/cancellation fees equal to the greater of (1) the cost incurred by Seller as a result of the cancellation, or (2) 25% of the purchase price. Non-stocked items (made to order or special order) and Consumable type Goods such as gaskets, O-rings, nuts, bolts, wear parts, etc. are not returnable once shipped to the Buyer and no credits or refunds can be offered to the Buyer. Customer is responsible for costs incurred to date and demobilization costs for Jobs cancelled prior to completion by Customer.
4. Limitation of Liability
Seller shall not be liable for special or consequential damages, such as, but not limited to, damage or loss of other property or equipment; loss of profits or revenue; loss of use of power system; cost of purchased or replacement power; or claims of Buyer’s customers for service interruptions. Buyer’s remedies set forth herein are exclusive, and Seller’s liability with respect to the Contract, or anything done in connection therewith, such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, installation or technical direction of installation, repair or use of any goods and/or services furnished under the Contract, whether in contract, tort, under any warranty, strict liability, negligence, or otherwise, shall not exceed the price of the goods and/or services which were furnished and on which a claim of liability is based.
5. Intellectual Property
Seller shall retain title and ownership of all intellectual property rights relating (directly and/or indirectly) to the Equipment provided by Seller, including but not limited to software or firmware (whether in the form of source code, object code or other), drawings, technical documentation, or other technical information delivered under the Proposal. Seller grants Buyer a non-exclusive and non-transferrable license and right to use the software and firmware in connection with the use and maintenance of the Equipment. Buyer shall not use any drawings, technical documentation or other technical information supplied by or on behalf of Seller for any purposes other than those directly related to the Proposal or to the use and maintenance of the Equipment. Buyer shall not in any form copy, modify or reverse engineer the software or give access to the software for such use to any third party without Seller’s prior written consent. Buyer shall not provide any information such as Seller’s internal manuals, manufacturing drawings, source codes, or other proprietary and confidential information, all of which are excluded from the Proposal.
6. Payment
a. Unless otherwise agreed in writing, and except as otherwise provided below, payment for all goods and services shall be net 30 days from the date of Seller’s invoice without discount for early payment. Seller reserves the right at any time to suspend credit or to change the credit terms provided herein if, in Seller’s sole judgment, Buyer’s financial condition so warrants. Buyer shall have no right to offset any amounts due or to become due to Seller against any claims, charges, expenses, fees or other payments of any kind whatsoever under any circumstances, including, but not limited to, any liability which may arise due to any breach or alleged breach of any provision of the Contract. Payment by credit or debit card, prepaid or otherwise, or any other means of payment with associated fees will be subject to a 3% service charge.
b. Buyer grants to Seller a purchase money security interest under applicable law in the goods sold until payment in full has been made. If Buyer defaults under the Contract, Seller shall have all of the rights and remedies of a secured creditor under applicable law. Buyer authorizes the filing of such financing statements and other documents as Seller may request to perfect Seller’s security interest.
7. Indemnification
Each party (the “indemnifying party”) shall indemnify and hold harmless the other party, and its agents, employees, officers, directors, successors and assigns, from and against any and all damages, liabilities, losses, expenses, costs or claims (including without limitation reasonable attorneys’ fees), that are directly caused by the indemnifying party’s negligence, willful misconduct or breach of any of its covenants, representations or warranties.
8. Force Majeure
Seller’s failure to deliver any goods when due, if caused in whole or in part by an act of God or any other act beyond Seller’s reasonable control, including without limitation fire, explosion, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition, shortage or failure of supply of materials or labor, or strikes or other labor trouble, shall be excused. Seller shall have no obligation or liability whatsoever arising out of or in connection with any such failure.
9. Governing Law
Unless otherwise provided in the Contract, the Standard Terms shall be deemed to have been executed and entered into in the State of Michigan, and the Contract, and its formation, operation and performance, shall be governed, construed, performed and enforced in accordance with the substantive laws of that state without regard to its conflicts of law principles. Each party to this agreement agrees that any litigation arising between the parties will be brought and venued exclusively in Livingston County, Michigan; consents to the jurisdiction of these courts and waives any objection that such venue is inconvenient or improper.