Standard Terms & Conditions of Sale & Service
The following Standard Terms and Conditions of Sale and Service (hereinafter the “Uesco Standard Terms”) are the only terms and conditions under which Uesco Industries, Inc. (hereinafter “Uesco” or the “Seller”) sells equipment, products, goods, and/or services to a buyer (hereinafter “Purchaser”). The Uesco Standard Terms are incorporated in all contracts entered into by Uesco. Uesco rejects and will not agree to any terms that are additional to or different from the Uesco Standard Terms. Terms that are printed on or contained in a purchase order or other form prepared by a customer or Purchaser, which are additional to, in conflict with, or inconsistent with the Uesco Standard Terms shall be considered inapplicable and shall have no force or effect. If a customer or Purchaser objects to any of the provisions of the Uesco Standard Terms, customer or Purchaser must bring such objection to the attention of Uesco in a writing separate from any purchase order or other printed form of customer or Purchaser, which shall be deemed to be solicitations for different terms and conditions that may be accepted only in writing signed by an authorized representative of Uesco. All orders are subject to the approval of Uesco’s credit department.
1. PRICE.
Prices quoted by Uesco in conjunction with a sales proposal (hereinafter a “Proposal”) shall remain firm for a period of fifteen (15) days from the date of the Proposal; provided, however, that Uesco reserves the right, at any time prior to the acceptance of a Proposal by Purchaser to adjust said prices by providing written notice to Purchaser regarding any such adjustment. Quotations provided are priced based on Purchaser’s purchase of the entire scope of goods and services identified in the Proposal. If less than the entire scope of goods and services identified in the Proposal is ordered by Purchaser, prices may vary. Unless otherwise stated in a Proposal, installation, commissioning, supervision and/or start-up services are not included in the price of goods and services to be provided by Uesco. Purchaser shall pay Uesco to the extent of services provided or for the quantity of goods shipped, should Uesco be unable for any reason to provide and/or ship the entire scope of goods and services identified in a Proposal. Prices quoted by Uesco are exclusive of all taxes (except taxes levied on Uesco’s income) including federal, state, provincial and local use, sales, property or similar taxes, and Purchaser shall pay all such amounts and taxes in full or shall reimburse Uesco for any such amounts and taxes paid by Uesco.
2. SCOPE OF GOODS AND / OR SERVICES.
Goods and services provided by Uesco pursuant to a Proposal or a purchase order are limited exclusively, at the express request of Purchaser, to the goods and services expressly identified in such Proposal and, to the extent applicable, further limited by the terms, conditions, limitations and disclaimers set forth in any report derived from or associated with Uesco’s provision of services. As a result, Uesco does not assume responsibility and/or liability for failure to provide any other goods and services. Inspection services provided by Uesco are limited to the visual observation of readily observable items that are safely and conveniently accessible without dismantling, in whole or in part, the equipment under inspection, unless specifically agreed in a writing signed by both Purchaser and Uesco (or otherwise set forth in the Proposal). Modifications, additions or deletions to or from the scope referenced in the Proposal whether set forth in a purchase order or otherwise shall only be effective if evidenced in writing signed by Uesco and the sale of any and all goods and services affected by such modification, addition or deletion shall be subject to these terms and conditions whether or not referenced therein. All sales of goods and services are final. In a case where Purchaser will not be the end user of the goods and/or services listed in a Proposal, such end user(s) shall have no rights under these terms and conditions or the Uesco Standard Terms, and Seller shall have no obligation to such end user(s) whatsoever.
3. PAYMENT TERMS.
Uesco’s standard terms of payment are NET 30 days subject to the approval of Uesco’s credit department, or as otherwise stated in the Proposal. If Purchaser fails to timely pay invoices, Uesco shall be entitled to suspend performance of all services and deliveries of goods and issue a late charge equivalent to the lesser of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or the maximum rate allowed by law on all unpaid invoices or invoices not paid in accordance with these terms and conditions. Purchaser shall reimburse Uesco for all expenses, regardless of their nature or type (including attorneys’ fees), related in any way to Uesco’s collection of invoices not paid in accordance with these terms and conditions or otherwise incurred by Uesco in the enforcement of these terms and conditions. If applicable, Purchaser shall make progress payments as stated in the Proposal or otherwise agreed to in a writing signed by Purchaser and Uesco. Purchaser shall have no right to offset any amounts due Uesco by any payment or other obligation which Uesco or any of its affiliates may owe to Purchaser.
4. CREDIT APPROVAL.
All sales of goods and services are subject to credit approval by Uesco. Uesco reserves the right to refuse shipment or provision of any and all goods and services identified in any Proposal, purchase order, or other agreement between Purchaser and Uesco and/or modify the payment terms identified therein or in Section 3 hereof.
5. TAXES.
Sales tax, Use, Excise, Occupational tax or any other local Federal, State or Local Tax, Duty or Permit Fees have not been included in the Proposal. The Purchaser hereby assumes all responsibility for and agrees to pay and/or reimburse the Seller for any of the above taxes, assessments and/or fees associated with any transaction arising from the Proposal.
6. CANCELLATION AND CANCELLATION CHARGES.
Cancellation of the Proposal by the Purchaser after acceptance can be made only with Uesco’s explicit agreement in writing. Uesco’s minimum cancellation charge is 10% of the contract price. However, cancellation charges may exceed that minimum. In the event of cancellation or suspension of manufacture of the equipment or other goods at the Purchaser’s request, the Purchaser agrees as a cancellation charge, to reimburse the Seller promptly for all expenditures for materials used or appropriated, labor and engineering, selling, and general and administrative expenses incurred in connection with such manufacture so far as it has been completed, and the contemplated normal profit on these items in accordance with invoices to be rendered by the Seller for extraordinary costs and other expenses attributable to such suspension or cancellation. Such cancellation charges may be as high as 100% of the contract price.
Any agreement for the purchase and sale of goods and/or services may be cancelled by Uesco (in whole or in part) at any time if (a) Purchaser fails to strictly comply with the terms governing the agreement, (b) Purchaser becomes insolvent, appoints or has appointed a receiver, or makes an assignment for the benefit of creditors, (c) to the extent permitted by law, a petition in bankruptcy or insolvency is filed by or against Purchaser, or (d) Uesco requests and is unable to secure acceptable payment assurances from Purchaser for the goods and services identified in such agreement, or (e) amounts due Uesco by Purchaser are unpaid past the due date therefor.
7. DELIVERY TERMS.
A. SHIPMENT / DELIVERY.
Unless otherwise identified in a Proposal, all shipments of goods are F.O.B. origin. In the case of goods manufactured by Uesco, all shipments of goods are F.O.B. Seller’s plant in Alsip (Worth Township), Illinois (unless otherwise identified in a Proposal). Seller will use all reasonable means to make shipment within the time frame specified in a Proposal, however Seller shall not be liable for delay in or failure to make shipment and/or delivery of goods or commencement, performance or completion of services by any identified date for any reason whatsoever. Delivery and shipping schedules shall be computed no earlier than from the later date that Purchaser accepts a Proposal or Uesco accepts a purchase order from Purchaser, or in the case of special items, from the date Uesco receives all information necessary to proceed. Delivery and shipping schedules will be confirmed by Uesco following Uesco’s acceptance of a purchase order. In the event of any delay, regardless of the cause, the parties shall agree upon a new date for the shipment and/or delivery of goods and/or commencement, performance or completion of services. In the event of any delay caused by Purchaser, Purchaser shall pay Uesco for all costs and expenses incurred by Uesco related to such delay. Purchaser hereby acknowledges and agrees that (i) Uesco and its personnel may, at its and their sole discretion, use a portable/handheld/cellular electronic device and software in connection with the services, and (ii) any signature of Purchaser and/or its employee or representative using, applied to, or on such device shall be deemed to be Purchaser’s written signature acknowledging Purchaser’s acceptance and Uesco’s delivery of the services.
B. TITLE AND RIGHT TO POSSESSION.
The title and right of possession of the equipment and other goods specified in a Proposal shall remain with the Seller until all payments have been made in cash to the Seller at its home office in Alsip, IL. It is understood and agreed that all equipment and other goods listed in a Proposal shall remain the Seller’s personal property whatever may be the mode of attachment to realty or otherwise until fully paid for in cash. An express Mechanic’s Lien is hereby conveyed and granted to the Seller upon the building and real property in which the equipment described in a Proposal is to be installed, for the purpose of securing payment of all sums due to Seller. In the event that Seller is compelled to bring action in court against the Purchaser to enforce any of the provisions of this agreement or the Uesco Standard Terms, the Purchaser agrees to pay the Seller’s reasonable Attorneys’ fees in addition to all other sums due to Seller.
C. FREIGHT CHARGES & PACKAGING.
Any reference to freight charges contained in a Proposal is an estimate. Uesco is not responsible for any differences that may occur between freight estimates contained in a Proposal and actual freight charges applicable at the time of shipment, and Purchaser shall incur and be responsible for all costs associated therewith. Unless otherwise identified in a Proposal, quoted prices do not include the cost for export, loading & unloading, additional material handling, or special packaging of goods, and Purchaser shall assume and be responsible for those extra costs associated with such handling, loading / unloading, packaging, and export.
D. WAREHOUSING.
If for any reason the Purchaser decides to place equipment in storage, all such storage and handling charges are to be at Purchaser’s expense. In the event the Purchaser does not accept shipment when ready as detailed in the order acknowledgment or mutually agreed-upon written document, the Seller reserves the right to place the equipment in storage and all related costs are to be borne by the Purchaser. All previous invoices. expected progress payments, and costs relating to the equipment will be due under standard payment terms when the equipment is ready for shipment.
E. RETURNS.
Goods that are spare or replacement parts (“Spare Parts”) or eligible packaged goods may only be returned (i) within thirty (30) days of purchase, (ii) after authorization of Uesco, and (iii) in “as new” condition. Returned Spare Parts and eligible packaged goods must be shipped prepaid by Purchaser. Purchaser will be charged a restocking charge of twenty-five percent (25%) for all returned goods manufactured by Uesco, however goods manufactured by other sources may be subject to a higher restocking charge. The following goods and Spare Parts may not be returned by Purchaser: (i) Spare Parts and/or eligible packaged goods custom made for Purchaser; and (ii) Spare Parts ordered specifically for Purchaser and not normally stocked by Uesco.
F. SERVICE: ACCESS TO EQUIPMENT.
For all services in a Proposal, Purchaser shall provide access to the relevant equipment to be serviced and all equipment required to complete the services outlined in such Proposal. If this is not possible, Uesco may, at its option, and at Purchaser’s expense, provide the necessary equipment to perform the services, including special equipment.
G. SERVICE: FREE AND CLEAR WORK AREA.
For all services in a Proposal, the immediate area around the job site shall be kept free and clear of objects that could hinder the progress of repairs. All forklifts or personal traffic shall be kept out of this area. Seller assumes no liability for damage to equipment or personal injury to anyone inside this designated area immediately beneath the equipment or the area adjacent to the equipment.
H. SERVICE: FREE AND CLEAR INSTALLATION ACCESS.
Where a Proposal includes installation and/or commissioning services, installation / commissioning is subject to the following listed conditions. Where the following conditions are not met, a price adjustment will be charged to Purchaser at prevailing standard rates:
i. It is solely the Purchaser’s responsibility to provide a safe, free and clear access to and at the point of installation. “Free and clear access” refers to all conditions necessary and adequate to handle the admission and positioning inside the building or erecting area of the delivering trucks, positioning of the erection rigs, and installation of the crane(s) & or runway(s) in a safe and efficient manner. Specifically, the following conditions form the basis of a proposed installation price:
a. completed public approach roads or highways having necessary clearance for truck turning radius into the job site;
b. navigable roads to the building or erecting area consisting of firm hard-packed dirt, stone, or paved surface. Special attention must be paid to weather conditions, length of loads, and necessary clearance for truck turning radius into the erecting area;
d. ample size of building entrance into the building or erecting area to handle the erection rigs, the delivering trucks, and the size of equipment pieces being delivered; egress from the building or erecting area must not require trucker to back out under suspended loads;
e. adequate area inside of the building or erecting area for the exclusive use of the installer and having a dry, level floor of firm hard-packed dirt, stone, or paved surface, and a minimum area of three times the column centers, or crane span plus 20’ – 0’;
f. sufficient headroom is available above the bridge rail plus an additional 8’ – 10’ depending on the crane's span. If such headroom is unavailable, alternate rigging schemes may be necessary and charged to the Purchaser at standard prevailing rates and equipment costs.
g. advance understanding with other contractors in the area whose activities shall not interfere with or delay the installer's work. Uesco installation personnel shall not be delayed in installing the equipment by circumstances beyond their control, or additional costs to the Purchaser will be charged at standard prevailing rates for all delays.
ii. Unless a Proposal states otherwise, it is the Purchaser's responsibility to provide the following:
a. runway beam(s) and rail system(s) that shall be aligned with regard to span and straightness and shall comply to the tolerances as stated in CMAA Specification 70 & or 74 (latest revision);
b. runway rails that shall be properly electrically grounded per the latest requirements of the NEC;
c. building runway bumper stops that shall be properly designed and part of the building structure system to withstand 100% horizontal impact forces of the crane(s); and,
d. mainline conductor system shall have the adequate electrical capacity and be aligned to the bridge rail.
iii. Suitable and permanent electrical power shall be connected to the conductor system by others.
iv. Unless a Proposal states otherwise, commissioning will be performed at the time of installation and it is Purchaser's responsibility to supply the following at the time of commissioning:
a. test weight of 100 to 125 percent of rated hook capacity. Please Note: It is Uesco's practice and a strong recommendation that the test weight used to load test a crane shall be “dead weight.” The purpose of this practice is to avoid personal injury and damage to valuable equipment should the test fail for any reason. Before Uesco’s personnel can participate in witnessing a load test using anything other than a dead weight, Uesco requires the following stipulation by the Purchaser to be submitted in writing from an authorized representative of the Purchaser:
(1) the Purchaser accepts full responsibility for the proper rigging of any equipment being used for test load weights;
(2) the Purchaser indemnifies and holds harmless Uesco’s from incidental and accidental damage to the equipment being used for test weights and any damages or injuries that may result from the use of such equipment.
b. appropriate rigging to lift test weights.
v. Unless a Proposal states otherwise, the price is based on one (1) mobilization to do the above-stated work. Purchaser with be charged at prevailing standard rates and equipment costs if additional mobilization(s) are required because of customer delay or circumstances beyond Uesco’s control.
vi. Uesco has not inspected the job site and has quoted standard labor hours (e.g., 8-hour day, Monday through Friday excluding holidays) to perform the above installation in a safe, free, and clear area as described above. A price change will be necessary if site conditions require additional labor or specialty machinery to perform the installation. Uesco’s service personnel require 10-14 working days minimum advanced notice to schedule field servicemen for installation, installation assistance, startup, and load testing.
vii. If a Proposal is accepted and Uesco discovers the absence of any of the above conditions, Uesco will notify Purchaser regarding the absence of such condition(s), and Purchaser will promptly address the situation. Any costs associated with erection work delay, increased scope of work, re-mobilization, storage, demurrage, or the like will be the Purchaser's responsibility. Any changes to the services listed in a Proposal due to any variation from the conditions listed above shall be effected solely by the written acceptance of associated price increase(s) signed by the Purchaser’s authorized representative.
8. SECURITY INTEREST.
Where applicable and in addition to the mechanic’s lien referenced in Section 7.b, upon acceptance of a Proposal, Purchaser shall grant Uesco a security interest in the goods to secure the unpaid balance of the price and all other obligations of Purchaser to Uesco however arising. Purchaser shall authorize Uesco to file all necessary financing statements and other similar documents required to perfect the security interest and shall irrevocably grant Uesco a power of attorney to execute any documents on behalf of Purchaser relating thereto.
9. WARRANTIES.
A. Goods/Spare Parts manufactured by Uesco and/or its affiliates (“Seller Products”) and goods/Spare Parts manufactured by parties other than Seller and/or its affiliates (“Third Party Products”).
Unless otherwise agreed in a writing signed by Purchaser and Seller, the sale and provision of any and all Seller Products, either as a result of Seller Products that are incorporated into Services provided pursuant to a Proposal, purchase order, or other agreement between Purchaser and Seller, or are purchased independently from the provision of any services, are conditioned upon, and subject to Uesco’s Standard Warranty for such Seller Product in effect on the date of sale (incorporated by reference as if fully rewritten herein and a copy of which is attached to a Proposal or is available at https://uescocranes.com/pages/warranty or upon request of Purchaser). Repair and replacement of Seller Products provided pursuant to the Standard Warranty does not extend the original warranty provided with any Seller Products at the time of sale. Notwithstanding anything to the contrary in any verbal order or purchase order, any verbal order or purchase order issued by Purchaser to confirm any purchase of goods and/or services or receipt of any of the goods identified in a Proposal shall serve as conclusive proof that Purchaser has reviewed and agrees to be bound by the terms of Seller’s Standard Warranty. Third Party Products are not warranted by Seller. Third Party Products may be warranted separately by their respective manufacturers and Uesco shall, to the extent possible, assign to Purchaser whatever rights Seller may obtain under any such warranties.
The Seller Products specified in a Proposal will perform the operation intended and are guaranteed to do so when installed in accordance with Seller’s drawings and instructions and under Seller’s supervision. Seller reserves all rights to make changes in material or design which, in Seller’s sole judgment, are necessary for the improvement or successful operation of the equipment.
For Seller Products, Uesco will repair or replace, at its option, defects in material or workmanship developing within one year from the date of installation, provided that Uesco receives immediate written notice at https://uescocranes.com/pages/warranty-procedure of such defects upon their discovery and such claims are substantiated by Uesco’s inspection department. Correction of such defects by repair or replacement, F.O.B. Uesco’s factory, shall constitute fulfillment of this guarantee. The return of all parts submitted for inspection under this guarantee must be authorized by Uesco, received within 30 days from submission of the claim, and transportation prepaid by the Purchaser. This warranty will not be applicable unless the Seller Product has been properly cared for and operated under normal conditions. Uesco has no liability for repairs made outside the Uesco’s factory unless Purchaser obtains Uesco’s prior written consent. This warranty does not apply to any Third Party Products, however such Third Party Products may include a limited warranty offered by their respective manufacturers.
B. Seller Products – Plans and/or Specifications Furnished by Purchaser.
All Seller Products to be sold in conjunction with a Proposal which shall be provided in accordance with plans and specifications furnished to the Seller by the Purchaser are warranted by the Seller solely that such equipment will meet the plans and specifications by Purchaser. Seller makes no other warranty express or implied as to such Seller Products.
C. Services.
Seller warrants that all services performed by Seller will conform in all material respects to the description of services identified in a Proposal and will be performed in a good, workman-like manner. Seller will repair or replace, at its option, defects in workmanship or material developing within ninety (90) days from the date service was performed provided the Seller receives immediate notice of such defects using our online warranty form at uescocranes.com/pages/warranty-procedure, and the Seller's inspection department substantiates such claims. Purchaser’s failure to comply with the terms of this procedure shall void the warranty in this Section 9.C. Seller does not warrant services provided by any third party, and Seller shall have no liability for repairs made by others without the Seller’s prior written consent. Purchaser shall, at all times, properly care for and operate the equipment serviced by Seller under normal conditions. Purchaser’s sole and exclusive remedy for Seller’s breach of the warranty in this Section 9.C for services performed by Seller shall be the correction or reperformance of such services by Seller. Freight on returned parts or component equipment to its respective manufacturer is the Purchaser’s responsibility. Purchaser acknowledges and agrees that Seller shall have no liability for loss of use or downtime, lost profits, or any indirect, incidental, or consequential damages arising from Seller’s breach of this warranty for services.
To the extent remanufacturing, refurbishment, modernization, and/or modification services are included within the scope of services identified in a Proposal, a purchase order, or any agreement between Purchaser and Seller, any defect in Purchaser’s equipment to which Seller performs such remanufacturing, refurbishment, modernization, and/or modification services that is attributable in whole or in part to engineering, design specifications, latent defects, corrosion, or fatigue that are inherent to and/or present in or on the equipment is not covered by any warranty of Seller, and Seller shall not be liable for any costs, expenses, losses, or damages of any nature whatsoever that are caused in whole or in part by any such defect.
D. Non-Transferability.
The express warranties of Seller set forth herein are limited to and only for the benefit of Purchaser and are not transferable or assignable by Purchaser without the prior written consent of Seller.
THE FOREGOING WARRANTIES REPRESENT THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER TO PURCHASER WITH RESPECT TO THE GOODS AND SERVICES AND IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PURCHASER HEREBY WAIVES ANY CLAIM THAT ANY EXCLUSIONS OR LIMITATIONS OF ANY WARRANTY PROVIDED BY SELLER DEPRIVE IT OF AN ADEQUATE REMEDY OR CAUSE ITS AGREEMENT WITH SELLER TO FAIL OF ITS ESSENTIAL PURPOSE. PURCHASER SHALL BE ENTITLED TO NO OTHER REMEDY REGARDLESS OF THE FORM OF CLAIM OR CAUSE OF ACTION, WHETHER BASED IN AGREEMENT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
10. DISCLAIMER (Inspection Services and/or Preventive Maintenance Programs).
Notwithstanding any representation made by any party to the contrary in any other verbal or written communication, the performance by Seller of any inspection as all or part of the services under a Proposal, purchase order or any agreement between Purchaser and Seller and the preparation of any report derived therefrom are conditioned upon and evidence of Purchaser’s acknowledgment and acceptance of the following additional terms, conditions, and disclaimers:
A. At the request of Purchaser, the scope of any inspection performed by Seller is limited exclusively to a search for readily observable defects apparent on the equipment and on those equipment component parts identified in the inspection description in a Proposal that are safely and conveniently accessible to the inspecting personnel. Seller shall not dismantle the equipment or the equipment components to be inspected, nor shall it use any other means to inspect and detect latent or non-observable defective conditions in the equipment or its components. Notwithstanding the performance of this inspection and regardless of any representation made in any report to the contrary, including any inspection report prepared by Seller, latent or non-observable defects may exist or develop on or in the subject equipment or its components on or following the moment of inspection and Purchaser is hereby notified of the potential existence thereof. The use of equipment possessing any defect, including latent or non-observable defects, may result in catastrophic equipment failure potentially causing damage to property or injury or death to persons in, on or around the equipment being inspected.
B. The conditions identified during any inspection and reported by Seller orally or in writing are representative of the condition of the equipment subject to the inspection and its components as they appeared during the inspection. These conditions can and will change immediately following inspection due to the use or non-use of the equipment (and its components). The information provided to Purchaser as a result of and following an inspection does not reflect any changes in the condition of the subject equipment and/or its components following inspection by Seller and Purchaser retains and/or assumes all risk for such changes in condition. Purchaser is hereby notified and acknowledges and agrees that delivery by email or other electronic means of any report prepared by Seller setting forth the results of an inspection or the making available of such report to Purchaser in any electronic portal or platform that is accessible to Purchaser constitutes delivery to and acknowledgment of receipt by Purchaser of such report.
C. The decision following an inspection concerning whether or not to repair or replace the equipment or any deficient component of the subject equipment lies exclusively with Purchaser. By completing the inspection and preparing the inspection report, Seller expressly recommends that Purchaser authorize the repair and/or replacement of the equipment or any component identified during the inspection or listed in any report derived therefrom as deficient in any manner or degree prior to operating the equipment. Seller hereby notifies Purchaser that any inspection report may contain information regarding deficient equipment and/or components thereof that require the immediate attention of Purchaser and that any failure to repair and/or replace such deficient equipment and components thereof may result in catastrophic equipment failure causing damage to property or injury or death to persons in, on or around the subject equipment.
D. SELLER IS NOT LIABLE FOR CLAIMS, DEMANDS, DAMAGES, OR LIABILITY ARISING FROM (I) CAUSES OUTSIDE THE SCOPE OF ANY INSPECTION AS IDENTIFIED IN SECTION 10.A., (II) ANY CONDITION THAT OCCURS FOLLOWING SUCH INSPECTION AS IDENTIFIED IN SECTION 10.B., (III) FAILURE OF PURCHASER TO REPAIR OR REPLACE ANY EQUIPMENT OR COMPONENT AS IDENTIFIED IN SECTION 10.C., OR (IV) FLAWS THAT ARE NOT DETECTABLE OR WHOSE DETECTION IS LIMITED.
11. LIMITATION OF DAMAGES.
SELLER SHALL HAVE NO LIABILITY TO PURCHASER OR ANY END USER OF GOODS OR SERVICES PROVIDED UNDER A PROPOSAL, PURCHASE ORDER, OR ANY OTHER AGREEMENT BETWEEN PURCHASER AND SELLER WITH RESPECT TO THE SALE OF GOODS OR PROVISION OF SERVICES FOR LOST PROFITS, LOSS OF USE OR DOWNTIME, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND WHETHER ARISING IN CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOST PROFITS, LOSS OF USE OR DOWNTIME, OR DAMAGES. SELLER’S AGGREGATE AND TOTAL LIABILITY FOR ALL DAMAGES OF ANY NATURE WHATSOEVER TO PURCHASER AND/OR ANY END USER OF GOODS OR SERVICES PROVIDED UNDER A PROPOSAL, PURCHASE ORDER OR ANY OTHER AGREEMENT BETWEEN PURHASER AND SELLER SHALL BE LIMITED TO AND IN NO EVENT SHALL EXCEED THE TOTAL PRICE PAID BY PURCHASER FOR SUCH GOODS AND SERVICES. PURCHASER HEREBY EXPRESSLY WAIVES ITS RIGHT TO ASSERT A CLAIM OR DEFENSE FOR RECOUPMENT AND/OR SETOFF, EQUITABLE OR OTHERWISE, WHEN PURCHASER’S UNDERLYING CLAIM WOULD BE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS PERIOD.
12. CONFIDENTIALITY; LICENSE.
Without limitation, Purchaser shall not, at any time disclose to any other person or entity any information provided to Purchaser relating to the business of Seller including without limitation, plans and specifications and any other inventions, devices, formulas, processes, programs, software, listings, print-outs, documentation, notes, charts, manuals, programming aids, source codes, object codes, compilations, technology, know-how, price lists, costs, policies, techniques, trade practices, accounting methods, methods of operation or other data that Seller considers confidential, and trade secrets of every kind relating to Seller’s business, whether or not patentable or copyrightable. Such information shall remain the exclusive property of Seller and shall be destroyed or returned to Seller upon request at any time. Further, these terms and conditions do not constitute a license or authorization of any kind for Purchaser to use any of the trademarks or trade names owned or licensed by Seller. Purchaser hereby grants to Seller a worldwide, irrevocable, royalty-free, non-exclusive license to collect, store and use, for any internal purposes of Seller, including but not limited to research and development, any data collected by Seller: (1) during the performance of any inspection; (2) during the performance of any other service(s); and/or (3) via monitor or monitoring unit(s) associated with any equipment or services in a Proposal.
13. DATA COLLECTION.
The goods purchased by Purchaser may have functionality through an included monitoring unit that monitors and records data related to certain aspects of equipment usage, and may also include a data connection that transmits such data related to certain aspects of equipment usage. Purchaser acknowledges and agrees that such monitoring unit(s) and data connection(s) may be activated by Seller, Purchaser, or another party immediately upon or at any time following delivery or installation of goods and the data collected may be collected by Seller or its affiliates directly and/or transmitted through the data connection. Purchaser, on behalf of itself, any end user of goods (“End User”) and any individual identified or identifiable by goods usage data, hereby consents to the collection, storage and use by Seller of such information and agrees that Seller’s collection of such information may continue until such time that Purchaser or End User (a) if applicable, terminate its agreement to receive and/or purchase remote monitoring services from Seller or its affiliates, or (b) otherwise directs Seller in writing to deactivate the data connection (provided, however, Purchaser hereby acknowledges and agrees that deactivation of any data connection(s) may not be immediate and Seller will use its commercially reasonable best efforts to deactivate any data connection(s) as promptly as possible). Purchaser further accepts and agrees that Seller shall not actively monitor or inspect any goods or goods usage data or other information that is generated, collected or stored by a monitoring unit incorporated into any goods and/or transmitted through the data connection. Regardless of the nature of information collected by Seller, Purchaser acknowledges and agrees that Seller shall have no obligation to alert or notify Purchaser of any information collected by Seller except as specifically set forth in a separate agreement between Seller and Purchaser and, unless and until Purchaser has agreed to purchase or receive remote monitoring services offered by Seller, Seller shall be under no obligation to provide any goods data to Purchaser.
14. INDEMNIFICATION; WAIVER OF IMMUNITY.
SELLER SHALL NOT BE LIABLE FOR AND PURCHASER SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ANY ENTITY AFFILIATED IN ANY WAY THEREWITH FROM ANY CLAIMS, DEMANDS, DAMAGES (REGARDLESS OF THEIR TYPE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL), LIABILITIES, LOSSES AND EXPENSES (WHETHER KNOWN OR UNKNOWN, PRESENT OR FUTURE), AND ANY AND ALL LIABILITY, OF AND FROM ANY AND ALL MANNER OF SUITS, ACTIONS OR CAUSE(S) OF ACTION (INCLUDING BUT NOT LIMITED TO SUITS FOR CONTRIBUTION AND/OR INDEMNITY AND ALL SUITS IN LAW, IN EQUITY, OR UNDER STATUTE, OF WHATEVER KIND OR NATURE) ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF ACTS OR OMISSIONS OF PURCHASER, ITS AGENTS, CONTRACTORS, EMPLOYEES OR ANY PERSON UNDER THEIR CONTROL (OTHER THAN SELLER) OR RELATING IN ANY WAY TO GOODS AND SERVICES PROVIDED UNDER A QUOTATION, A PURCHASE ORDER OR ANY OTHER AGREEMENT BETWEEN PURCHASER AND SELLER OR THE EQUIPMENT RELATED THERETO, INCLUDING, BUT NOT LIMITED TO PURCHASER’S USE, INSTALLATION, INCORPORATION OR SELECTION THEREOF. PURCHASER HEREBY WAIVES ANY IMMUNITY OR DEFENSE UNDER APPLICABLE WORKERS’ COMPENSATION LAWS OR OTHER LAWS THAT WOULD OTHERWISE LIMIT PURCHASER’S OBLIGATIONS HEREUNDER. MOREOVER, PURCHASER WAIVES ANY REQUIREMENT SET FORTH BY THE STATUE OF FRAUDS OR OTHERWISE, THAT THESE INDEMNIFICATION OBLIGATIONS MUST BE SIGNED BY PURCHASER AND/OR SELLER AND REPRESENTS THAT BY ISSUING A PURCHASE ORDER, SIGNED OR OTHERWISE, AND/OR ACCEPTING THE GOODS OR SERVICES, PURCHASER EXPRESSLY CONSENTS TO THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN.
15. ERRORS.
Seller reserves the right to correct all typographical or clerical errors which may be present in the prices or specifications in a Proposal.
16. CHANGES AND ALTERATIONS.
Changes and alterations in the goods and/or services requested by Purchaser after a Proposal becomes an order shall require renegotiations for possible changes in the price or other order amount(s). Changes required due to incorrect or improper information furnished to the Seller by the Purchaser, improper location of adjoining or adjacent equipment, building alterations or irregularities caused by Purchaser or others, or any other condition related to Purchaser’s building or installation site shall be paid for by the Purchaser.
17. FOOTINGS.
If required, concrete footings are to be supplied by the Purchaser for supporting runway columns or steel fabrications to be anchored to the floor. Unless stated otherwise, concrete anchor bolts or fasteners are not included in a Proposal.
18. PAINTING.
Seller Products will be provided with Seller’s standard shop/finish coat of paint unless specified in a Proposal. Third Party Products will be furnished with each third party manufacturer’s standard finish unless specified in a Proposal.
19. ELECTRICAL PIPING AND CONDUIT.
Electrical wiring, conduit, and necessary switching devices from Purchaser’s building power supply to Seller’s equipment or electrification systems shall be provided by Purchaser.
20. OSHA.
Uesco Industries, Inc. will sincerely endeavor to design its equipment to meet the technical requirements of the latest edition of OSHA Industry Standards. However, sole authority to determine compliance rests with the inspecting agency and responsibility for field changes of equipment to meet different interpretations is the Purchaser’s.
21. DRAWINGS.
All drawings, illustrations or samples prepared by Seller related to a Proposal are the property of Uesco and shall be returned upon demand. These drawings, illustrations, and/or samples shall be considered highly confidential and shall be used in no way which is detrimental to the interests of Uesco.
22. APPROVAL DRAWINGS.
Approval drawings, if provided to Purchaser by Seller and either signed by a representative of Purchaser with apparent authority to do so or not objected to by Purchaser in writing within a reasonable time or, if required, the time required by Seller, shall constitute exclusive proof regarding Purchaser’s verification and acceptance of the dimensions and other information relating to the goods described therein, and Seller shall be entitled to rely on such approval drawings to provide the goods and/or services referenced therein. Purchaser hereby assumes any and all responsibility for any inaccurate or incomplete information contained therein. TO THE EXTENT THAT PURCHASER PROVIDES THE DESIGN AND/OR SPECIFICATIONS FOR ANY GOODS OR SERVICES TO BE PROVIDED OR PERFORMED BY SELLER, PURCHASER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER AGAINST ALL CLAIMS, SUITS, AND CAUSES OF ACTION AND FROM ALL COSTS, EXPENSES, DAMAGES AND LIABILITIES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ AND CONSULTANTS’ FEES) FROM IMPROPER OR DEFECTIVE DESIGN AND FOR ACTUAL OR ALLEGED INFRINGEMENT OF ANY UNITED STATES OR FOREIGN PATENT, COPYRIGHT, TRADEMARK, INTELLECTUAL PROPERTY RIGHTS, OR PROPRIETARY RIGHTS OF THIRD PARTIES BY REASON OF THE USE, SALE, MANUFACTURE, OR DESIGN OF SUCH GOODS AND/OR SERVICES.
23. EXISTING BUILDING CONDITIONS.
It is the responsibility of the Purchaser to ensure that any runways, monorails or steel fabrications attached to, supported from, or in any way braced or connected to Purchaser’s building or its structures will not damage or have adverse effects upon the building or its structures. Uesco Industries, Inc. assumes no liability for any problems relating to the building, the building’s structures, or Seller’s system(s) due to failure of the Purchaser to have the existing building and its structures inspected and investigated prior to installation to ensure the building can safely assume the loads and forces applied to the building.
24. PERMITS, BONDS, LICENSES.
Permits, bonds, and contractor license fees, if required, are not included in a Proposal unless explicitly stated.
25. FIELD ADJUSTMENTS – SERVICE / REPAIRS ONLY.
After completing certain field repairs concerning primarily motor brakes, load cables, and VFD’s for travel motions, field adjustments under load are required for the proper operation of the devices. Purchaser shall furnish the test load for these adjustments and Uesco will complete them, unless stated otherwise in a Proposal. Some of the aforementioned devices require a break-in period, which may require further adjustment after a period of time. Unless a Proposal specifically includes additional adjustments to these devices, such as those required after a break-in period, such services are expressly excluded and will not be provided unless subsequently agreed upon in writing as an additional service. Such additional services shall be charged at prevailing standard rates.
26. UTILITIES.
Where a Proposal includes installation services, it is the responsibility of the Purchaser to have electrical power available within a reasonable distance of the installation site. Power requirements are 230 or 460/3/60 and 110/1/60.
27. POWER LOCKOUT.
Where a Proposal includes installation and/or inspection services, in the case of multiple cranes on a common runway, Seller will attempt to repair or inspect only the piece of equipment requiring such service(s), provided there is no danger to the personal safety of the service technician(s). If a service technician determines there is activity that presents a personal safety hazard or a hazard to the performance of the work, Seller reserves the right to lock out the power supply to the main conductors on this runway, shutting down all equipment until the work is completed. If this is not possible because of production schedules or for any reason, Seller reserves the right to suspend services until these conditions are met. Any additional costs incurred due to return visits to the site or overtime hours will be charged at prevailing standard rates.
28. TECHNICAL OPINION.
From time to time, when present at a service site, Seller’s service technicians may be asked their opinions as to the serviceability or reliability of the equipment under repair. Any statements made by a service technician are strictly the opinion of the service technician, and do not represent the views, position, or policy of Seller. Seller extends no warranty as to the fitness or reliability of the equipment based on these opinions.
29. COMPLIANCE WITH LAWS; EMBARGOES AND ECONOMIC SANCTIONS COMPLIANCE.
Purchaser shall at all times comply with all federal, state, local and provincial laws, ordinances, regulations, and orders that are applicable to the goods and services provided by Seller and its performance hereunder, except to the extent that failure to comply therewith could not or would not, in the aggregate, reasonably be expected to have a material adverse effect on its business or its ability to comply with its obligations under these terms and conditions.
Purchaser represents and warrants that Purchaser: (i) is and shall remain in compliance with all laws administered by the United States Office of Foreign Assets Control or any other applicable governmental entity imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries, entities and persons (collectively, “Embargoed Targets”); (ii) is not an Embargoed Target or otherwise subject to any Economic Sanctions Law; and (iii) shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Purchaser shall not (a) directly or indirectly export, re-export, transship or otherwise deliver any goods and services provided by Seller or any portion of such goods and services to an Embargoed Target, or (b) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
PURCHASER SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER OR ANY ENTITY AFFILIATED IN ANY WAY THEREWITH FROM ANY CLAIMS, DEMANDS, DAMAGES, LIABILITIES, FINES, INVESTIGATIONS, PENALTIES, LOSSES, AND EXPENSES OF AND FROM ANY AND ALL MANNER OF SUITS, ACTIONS OR CAUSE(S) OF ACTION (INCLUDING BUT NOT LIMITED TO SUITS FOR CONTRIBUTION AND/OR INDEMNITY AND ALL GOVERNMENTAL ACTIONS AND/OR SUITS IN LAW, IN EQUITY, OR UNDER STATUTE, OF WHATEVER KIND OR NATURE) ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF PURCHASER’S BREACH OF THIS SECTION 24.
30. SURVIVAL.
Each section hereof intended for the benefit of Seller shall survive the delivery of the goods and/or expiration, termination or completion of the services.
31. GOVERNING LAW; JURISDICTION.
Any controversy or dispute of any nature arising out of or related to these terms and conditions, a Proposal, a purchase order, or any other agreement between Purchaser and Seller and the provision of goods and/or services thereunder, shall be construed and governed by the laws of the State of Illinois. Any action arising from or related to these terms and conditions, a Proposal, a purchase order or any other agreement between Purchaser and Seller and the provision of goods and/or services thereunder, shall be instituted and litigated in any state court located in Cook County, Illinois, or in any federal court with jurisdiction over Cook County, Illinois. Seller and Purchaser hereby irrevocably consent to the jurisdiction of the courts of Cook County, Illinois. The rights and obligations of Seller and Purchaser will not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods; rather these rights and obligations will be governed by the laws of the State of Illinois.
32. ENTIRE AGREEMENT.
Unless otherwise specifically agreed in writing signed by both Purchaser and Seller, these terms and conditions together with Uesco’s Standard Warranty incorporated herein by reference, represent the entire agreement between Seller and Purchaser with respect to goods and services purchased and sold pursuant to a Proposal, purchase order or other agreement between Purchaser and Seller. THESE TERMS AND CONDITIONS AND THE PRICES SET OUT IN A PROPOSAL SPECIFICALLY RECOGNIZE THE ALLOCATION OF THE RISKS OF PERFORMANCE OF THE PARTIES AS WELL AS THE LIMITATION OF LIABILITY AND DAMAGES AND THE RECOVERY OF COLLECTION COSTS, AND THE PARTIES EXPRESSLY AGREE THAT THESE LIMITATIONS ON REMEDIES, RESPONSIBILITY FOR COLLECTION COSTS, AND OBLIGATIONS TO INDEMNIFY ARE ESSENTIAL PARTS OF THE AGREEMENT BETWEEN THEM AND ARE SPECIFICALLY BARGAINED FOR. Any purchase order or other document issued by Purchaser shall be deemed to (i) be solely for the record keeping convenience of Purchaser, and (ii) confirm these terms and conditions and not add to, delete from, or otherwise change or modify these terms and conditions or those contained in a Proposal.
33. SEVERABILITY.
The partial or complete invalidity of any one or more provisions of these terms and conditions shall not affect the validity or continuing force and effect of any other provision. If any portion of these terms and conditions shall be determined to be invalid or unenforceable, that portion shall automatically be modified to the extent necessary to make it valid. Notwithstanding the foregoing, such determination of invalidity or unenforceability shall not affect any other portion of these terms and conditions and such other portions shall remain in full force and effect.