HAAKER UNDERGROUND EQUIPMENT COMPANY STANDARD TERMS AND CONDITIONS
1. General. The following standard terms and conditions of sale (the “Terms”) govern any sale(s), repair(s) or replacement(s) by Haaker Underground Equipment Company (the “Seller”) of any products, parts, vehicles, accessories or services performed by the Seller (collectively, the “Products”) to any person or entity desiring to purchase the Products (the “Customer”). The Seller’s acceptance of any purchase order from the Customer shall be subject to the Terms, even if the Customer’s purchase order includes other terms and conditions. Any preprinted terms contained or referenced on the Customer’s purchase order or similar instrument, whether contradictory to the Terms appearing herein or otherwise, are rejected by the Seller. All orders shall be subject to the Terms and none of these Terms may be added to, modified, superseded, waived or otherwise altered except by a written instrument signed by an authorized officer of the Seller.
2. Prices and Taxes. Unless otherwise specified, prices do not include sales, revenue, excise, occupation, use, or other taxes or customs duties which are applicable now or which may hereafter be levied, imposed or assessed, which, if applicable, shall be the sole responsibility of and shall be paid by the Customer.
3. Terms of Payment. Unless otherwise agreed to in writing by the parties, all orders shall be paid in full upon the Customer’s receipt of Seller’s invoice or order acknowledgement and paid in U.S. Dollars. Any amounts that remain unpaid when due shall accrue interest at the greater of one and one-half percent (1.5%) per month or the maximum rate permitted by law. If any suit or action is instituted to collect any remaining unpaid amounts, the Customer agrees to pay such additional fees for collections, attorneys’ fees, and any other costs and expenses as a court may adjudge reasonable.
4. Delivery and Returns. Delivery shall be F.O.B. the Seller’s facility at any of the locations in California, Nevada, or Arizona. The Products hereunder are deemed accepted upon delivery and not subject to return except upon written consent of the Seller. Any returned Products are subject to a twenty percent (20%) handling and re-stocking charge. The Customer assumes all risk of loss or damage upon delivery to the Customer or the carrier at the F.O.B. point, whichever comes first, but the Seller agrees to cooperate with the Customer in prosecution of claims against any carrier. Transportation from the F.O.B. point and all related costs shall be paid by the Customer.
5. Limited Warranty. The Seller warrants to the Customer that the Products shall be free from defects in material and workmanship pursuant to the Limited Warranty of New Products, Parts and Accessories (the “Limited Warranty”) which is hereby incorporated by reference.
6. Repairs or Replacement. Any repairs or replacements shall be undertaken by Seller pursuant to the Limited Warranty or by written authorization by an authorized officer of Seller. The Customer hereby consents to Seller engaging any third parties necessary to carry out repair work at the Customer’s expense. The Customer shall cooperate with Seller by providing the entire Product and all information related to the repair or replacement of the Product, including all information surrounding the use of the Product.
7. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY REFERENCED IN SECTION 5, ALL PRODUCTS ARE PROVIDED “AS-IS” AND THE SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PRODUCTS. THE SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, THE SELLER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCTS OR THAT THE PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY PACKAGING OR INSTRUCTIONAL INFORMATION) COMPLY WITH APPLICABLE LAWS, REGULATIONS, REQUIREMENTS OR GUIDELINES OF ANY GOVERNMENTAL AGENCY. THE CUSTOMER WAIVES ANY RIGHT EXTENDING BEYOND THE LIMITED WARRANTY INCLUDED IN SECTION 5. THE LIMITED WARRANTY INCLUDED IN SECTION 5 IS THE ONLY WARRANTY OFFERED BY THE SELLER, AND IS THE ONLY WARRANTY AVAILABLE TO THE CUSTOMER. THE SELLER DOES NOT AUTHORIZE ANY OTHER PERSON TO MAKE ANY OTHER WARRANTY CONCERNING ANY OF THE PRODUCTS.
8. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THE TERMS, OR OTHERWISE, THE SELLER SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS GIVING RISE TO THE CUSTOMER’S CLAIM, (B) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, DAMAGES TO PROPERTY, OR LOST PRODUCTION TIME, OR ANY OTHER INCIDENTAL DAMAGES, WHETHER DIRECTLY OR INDIRECTLY, OR (C) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS. THE SELLER SHALL NOT HAVE LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THE SELLER’S REASONABLE CONTROL.
9. Indemnification. The Customer shall indemnify, defend and hold the Seller and its officers, directors, employees, contractors and shareholders harmless from and against any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, and expenses of any kind or nature relating to or arising from (a) the use of the Products, (b) claims made by third parties relating to the Products, or (c) injuries (including death) to any person or damage to any property however caused arising from or related to the Products.
10. Appropriate Use and Compliance with Laws. The Customer shall be solely responsible for determining whether the Products are fit for the Customer’s particular use, and whether the Customer’s use of the Products is in compliance with all applicable laws.
11. Cancellation. Orders are subject to cancellation by the Customer only upon the written consent of the Seller. The Customer shall pay the Seller for all work and materials which have been committed and/or identified to the Customer’s order, plus a twenty percent (20%) handling and re-stocking charge.
12. Governing Law. The sale, repair and replacement of the Products shall be governed under the laws of the State of California, without regard to the conflict of laws rules of such state, and all claims brought hereunder shall be filed in a court of competent jurisdiction in California.
13. Exclusive Jurisdiction. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of California for purposes of construing and enforcing the Terms.
14. Severability. If any provision contained herein is held by a court of competent jurisdiction to be unenforceable, the remaining terms and provisions shall be unaffected and remain in full force and effect to the maximum extent possible.
15. Waivers. No failure or delay in exercising any right hereunder shall operate as a waiver thereof; nor shall any failure to exercise, or partial exercise of, any right hereunder preclude any other or further exercise of such right or the exercise of any other right.
16. Integration. The Terms, the Limited Warranty, and any work orders, repair orders, invoices, exhibits, appendices, and amendments hereto, encompasses the entire agreement between the parties, and supersedes all previous understandings and agreements between the parties, whether oral or written. The parties hereby acknowledge and represent, that said parties have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in the Terms, the Limited Warranty, and the invoices, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement. The parties hereby waive all rights and remedies, at law or in equity, arising or which may arise as the result of a party’s reliance on such representation, assertion, guarantee, warranty, collateral contract or other assurance.
17. Force Majeure. In addition to any excuse provided by applicable law, the Seller shall be excused from its obligations to perform under any order between the Customer and the Seller in the event of circumstances beyond the Seller’s reasonable control, whether or not foreseeable by either party, including, without limitation, any pandemic, social unrest, government reaction to any pandemics or social unrest, labor disturbance, war, terrorism, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, inability of the Seller to obtain materials, and other causes or events beyond the Seller’s reasonable control, whether or not similar to those enumerated above.