TERMS AND CONDITIONS OF SALE
The Terms and Conditions of Sale below constitute an Agreement between Collicutt Energy Services Inc. (“Collicutt”) and Customer. The provisions of this agreement supersedes all prior agreements, negotiations, understandings, representations and warranties, whether written, oral or otherwise, and no waiver, alteration, or modification of the provisions of this Agreement shall be binding unless agreed to in writing and signed by both Collicutt and Customer.
QUOTATIONS – All quotations are valid for thirty (30) days from the date of the quotation unless otherwise agreed to in writing by Collicutt. A quotation is not a valid acceptance of an offer to sell unless (1) a purchase order is received by Collicutt signed by a duly authorized representative of the Customer and (2) approved by Collicutt’s Credit Department. Inadvertent error in either price or terms is subject to correction.
2. SPECIAL ORDERS – A nonrefundable deposit is required for all special order equipment and accessories. The deposit will be applied against the balance of the equipment invoice and cancellation charges, if any.
3. CHANGES AND CANCELLATION – Customer agrees to pay for any changes in scope, design, or work plan for that ordered. Customer may cancel the order only upon written notice to Collicutt Energy Services Inc., and payment of Collicutt Energy Services Inc. cancellation charges. Cancellation charges are the greater of (1) twenty five percent (25) of the Purchase Order amount or (2) the cost incurred up to the date of receiving the written cancellation request. Collicutt Energy Services Inc. shall have the right to subcontract any or all work covered by the sale. Sale is non assignable by the customer without the prior written approval of Collicutt Energy Services Inc.
4. PAYMENT TERMS – All billings are net 15 days from the date of the invoice, payable in US dollars unless otherwise specified. Retention is not acceptable. Customers not adhering to payment terms agree to pay delinquency charges of one and one-half percent (1.50) per month or the maximum allowable by law, whichever is greater, on the unpaid balance. If Collicutt Energy Services Inc. commences an action to collect the amount due, the Customer agrees to reimburse Collicutt all collection costs, attorney fees, and court costs. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Collicutt, whether relating to Collicutt’s breach, bankruptcy or otherwise.
5. SHIPMENT, DELIVERY, AND STORAGE – Delivery dates are approximate unless otherwise specified and are subject to manufacturer’s lead times. Shipment is FOB Customer’s facility or job site, unless otherwise specified. Final inspection and acceptance shall occur at the customer’s facility or job site at the time of delivery before off loading and placement. Off loading and placement is the customer’s responsibility unless otherwise provided for. Storage and interest charges will result when equipment and accessories ready for shipment to the customer are held in Collicutt Energy Services Inc. inventory due to Customer’s refusal or inability to accept timely delivery.
6. LIMITED WARRANTY SERVICES – Regarding Services, Collicutt warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this quotation. Collicutt’s sole obligation under this warranty shall be, in its sole discretion, to (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
7. LIMITED WARRANTY GOODS – Regarding Goods, Collicutt warrants to Customer that the Goods will materially conform to the specifications in the Sales Confirmation and will be free from material defects in material and workmanship. Warranty on the engines, parts and add-ons supplied with or attached to the Goods is limited to the warranty extended by the particular engine, component part or add-on manufacturer. Collicutt’s sole obligation under this warranty is limited, in its sole discretion, to (i) repairing or replacing the Goods at its designated facility or (ii) crediting Customer the purchase price of the defective Goods pursuant to Collicutt’s then current credit policies with respect to returned Goods upon Collicutt’s receipt of the defective Goods.
8. RETURNED MERCHANDISE – Equipment, accessories and parts cannot be returned without prior written approval of Collicutt Energy Services Inc. Equipment, accessories and parts must be in salable condition. Customer must pay transportation costs and a restocking charge of twenty five percent (25%) of invoice amount.
9. SECURITY INTEREST – Collicutt Energy Services Inc. retains and Customer hereby grants Collicutt Energy Services Inc. a Security Interest in equipment being sold, including all accessions to and replacements of the equipment, until the Customer has made payment in full in accordance with the provisions herein. Customer shall cooperate fully with Collicutt Energy Services Inc. in executing such documents as Collicutt Energy Services Inc. may deem necessary for the protection of such Security Interest.
10. TAXES, LICENCES, PERMITS AND INSURANCE – Customer shall pay to Collicutt Energy Services Inc. the amount of any sales, use, excise, duty or similar tax attributable to the sale covered hereby, whether or not included in the purchase or quotation price. Collicutt Energy Services Inc. will assume no responsibility for obtaining permits or licenses other than those specifically provided for. Customer shall reimburse Collicutt Energy Services Inc. for the cost or providing any insurance related rights or waivers associated with Collicutt Energy Services Inc. existing insurance policies. Where taxes do not apply upon sale or resale, Customer shall provide Collicutt Energy Services Inc. with appropriate exemption certificates.
12. DISCLAIMER OF IMPLIED WARRANTIES – Except for the limited warranties set forth in Section 11 and Section 12, Collicutt disclaims all implied warranties (other than good title), including but not limited, to those of fitness for a particular purpose and merchantability, whether otherwise arising by law, custom, usage, trade practice, course of dealing, or course of performance. Customer affirms that it has not relied upon Collicutt’s skill or judgment to select or furnish the Goods for any particular purpose beyond the specific limited warranty herein. Any design provided by Collicutt is based on information provided by Customer. Any modifications of drawings, prototypes and other work of Collicutt after approval by Customer will be at Customer’s expense at Collicutt’s then customary rates for services and materials
13. LIMITATION OF LIABILITY – In no event shall either party hereto be liable for any special, indirect, incidental, consequential (including general or special damages for loss of use or revenue or lost profits), EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE (collectively “excluded damages”). Each party hereto disclaims and waives any liability of the other for any “excluded damages.” Collicutt’s aggregate liability for any Customer’s claim shall not, under any circumstances, exceed the payment received by Collicutt for the equipment, parts, accessories and/or services furnished.
14. SECURITY INTEREST – Collicutt retains and Customer hereby grants Collicutt a lien and security interest in in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code. Customer hereby authorizes Collicutt to prepare and/or file such financing statement(s) and other documents and do such acts and things as Collicutt shall determine in its sole discretion are necessary or appropriate to create, establish and maintain, pursuant to the Uniform Commercial Code of the State of California (“Code”), a perfected security interest in the Goods by any means authorized by law, whether currently in effect or becoming effective in the future, including electronic filing. Customer hereby authenticates this Agreement as a record and authorizes Collicutt to (i) prepare and file such records without the signature of Customer; (ii) file such writing bearing any general, generic or super generic description of the Goods as collateral authorized by the Code; and (iii) file any future records which shall be deemed authenticated by Customer.
15. INDEMNIFICATION – Customer shall keep Collicutt, its employees, agents and advisors fully and effectively indemnified, defended and held harmless against any loss of or damage, including all costs, charges, expenses and reasonable attorneys’ fees and costs, to any property or injury to or death of any person caused by any negligent act or omission or breach of this Agreement by Customer, its employees, agents or advisors, and shall pay to Collicutt all reasonable costs, charges and losses, including reasonable attorneys’ fees and costs, sustained or incurred by Collicutt as a result of Collicutt being prevented or delayed from performing its obligations under this Agreement by reason of any act or omission of Customer, its employees, agents or servants.
16. FORCE MAJEURE.- Collicutt shall not be liable or responsible to Customer, nor be deemed to have breached this Agreement, for any failure or delay in performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Collicutt, including, without limitation, acts of God, flood, fire, earthquake, severe weather events, explosion, governmental actions, terrorist threats or acts, riot, or other civil unrest, national emergency, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or power outage; provided that, if the event in question continues for a continuous period in excess of 30 days, Customer shall be entitled to give notice in writing to Collicutt to terminate this Agreement. Customer agrees to pay Collicutt any costs incurred up to the date of termination.
17. CHOICE OF LAW – Except as expressly provided herein, this Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions therein. The United Nations Convention on Contracts for the International Sales of Goods (CISG) shall not apply and are specifically excluded. Collicutt elects to opt out of the CISG.
18. WAIVER – Waiver by Collicutt Energy Services Inc. of any breach of any of the Terms and Conditions of Sale included herein or on any attachment shall not be construed as a waiver of any other breach. Waiver by Collicutt Energy Services Inc. of any breach must be in writing.
19. CUSTOMER’S REMEDIES – Collicutt Energy Services Inc. shall not be in default and shall not be liable for delays by equipment manufacturers or suppliers or any other circumstances beyond Collicutt Energy Services Inc. reasonable control. Customer’s exclusive and sole remedy on account or in respect of any breach, or to any express or implied warranty, shall be to secure replacement. Correction of any nonconformity shall constitute complete fulfillment of all liabilities of Collicutt Energy Services Inc. Collicutt Energy Services Inc. aggregate liability in any Customer claim shall not, under any circumstances, exceed the payment received by Collicutt Energy Services Inc. for the equipment or services furnished. Collicutt Energy Services Inc. liability shall be limited to those claims arising solely from the acts of Collicutt Energy Services Inc. Collicutt Energy Services Inc. shall not be liable whether in contract or in tort or under any other legal theory for loss of revenue, use, or profit or for the cost of any labor expended. Customer agrees to indemnify, save and hold Collicutt Energy Services Inc. harmless for any special, direct, indirect, incidental, accidental or consequential damages to anyone by reason of any breach of contract or of any express or implied warranty.
20. GENERAL – The paragraph headings used in the Agreement are for the purposes of convenience only. They shall not be construed to limit or to extend the meaning of any part of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, then that provision shall be deemed to be deleted, and remaining provisions hereof shall remain in full force and effect.