TERMS AND CONDITIONS APPLICABLE TO SALES BY BHP, INC. DBA GLOBAL POWER COMPONENTS (“Seller”)
- Complete Agreement and Acceptance: These terms and conditions (the “Terms”) apply to the sale of any goods covered by Seller’s Quotation (“Quotation”) accepted by Buyer. Any additional or different terms or conditions proposed by Buyer shall not be effective unless and until the additional or different terms or conditions are accepted by Seller by written signature. Buyer’s issuance of a purchase order (“PO”) constitutes Buyer’s acceptance of the provisions herein, without the addition of Buyer’s proposed different or additional terms. All terms and conditions contained in any PO or other documents from Buyer that supplement or contradict the Quotation or these Terms are hereby expressly rejected, including delivery dates. All sales are expressly conditioned upon Buyer’s assent to these Terms.
- General Warranties and Standards: Seller makes those of the following warranties as are appropriate for any goods supplied: (a) the goods will be produced according to Seller’s standard manufacturing process and (b) at time of delivery, meet Seller’s published specifications. Seller further warrants the goods against defects in Seller’s workmanship and materials under normal use and service, in conformance with recommended installation for a period of twelve (12) months from the date of shipment. Seller excludes any warranty or liability arising out of or relating to: (i) accident, theft, misuse or neglect; (ii) lack of routine care or maintenance, rust, oxidation or other surface damage caused by paint or finish failure due to improper repair of surface damage, Buyer’s or its agent’s negligence, unauthorized modifications to the goods, improper storage or handling of the goods, improper or contaminated fuel, fluids or lubrication, use of parts that do not meet Seller’s specifications; (iii) failure to use or take proper precautions; (iv) modification of any product; (v) defects, problems, or failures created by third-party products or their interface with Seller’s products; (vi) failure or addition of OEM or other component parts not manufactured by Seller (including but not limited to pumps, tires, wheels, brakes, bearings, axles, couplers, switches, motors, batteries, etc.) and such claims shall be directed to the OEM manufacturer); (vii) in the case of goods sold FOB Seller’s facility, damage to goods occurring during or resulting from transportation, detention or demurrage or unloading at Buyer’s destination; (viii) selection of materials, unless Seller’s Quotation includes specifications; and in no case for undisclosed field conditions or requirements; (ix) charges for labor and/or materials for any field repair unless expressly authorized in writing by an officer of GPC prior to the commencement of the work; (x) performance rating or uptime; and (xi) Force Majeure. Buyer’s sole and exclusive remedy in the event of a breach of the warranty described herein is limited to, at Seller’s sole discretion, repair, replacement of, or credit against future purchases for, the non-conforming portion of the goods. All return shipping charges must be prepaid by the Buyer. If at Buyer’s request, Seller agrees to conduct an inspection of goods away from Seller’s facility in Milwaukee, Wisconsin (“field repair”) to determine if a warranty claim exists and Seller determines the issue is not covered by this warranty, then all expenses relating to said field repair service call shall be billed to the Buyer.
“Force Majeure” shall mean causes beyond a party’s reasonable control, including but not limited to acts of God, fire, strike or other labor difficulty, flood, military authority, government regulation, embargoes, supply chain issues including but not to limited shortages of, or delays in delivery of, materials or components or labor, or other circumstances causing work slowdown or stoppages such as an epidemic or pandemic resulting from a communicable disease or any other type of health or environmental crisis.
THE ABOVE ARE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO BUYER. EXCEPT AS OTHERWISE SET FORTH HEREIN, SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF TITLE, AND NON-INFRINGEMENT.
- Terms and Warranties Applicable to Sale of Tanks, Pumps and Controllers. In addition to the Terms and Warranties Applicable to Sale of Tanks, Pumps and Controllers. In addition to the other Terms described herein (including Seller’s exclusions of warranties and limitations of liability) Seller’s sale of tanks, tank parts and controllers (“Tanks”) shall be subject to these additional terms and conditions. Seller shall supply the Tank, pumps, parts and controllers only. Seller is not responsible for installation, connectivity or incorporation of any Tank into any existing system. Seller is not responsible for any fuel spills, environmental contamination or labor costs under any circumstances, regardless of the cause for such spills or contamination. Buyer agrees and acknowledges it shall be solely responsible for installing and connecting the Tank to other tanks, fuel systems, machines or equipment on-site. Buyer is solely responsible for testing and commissioning of the Tank on-site. Seller’s warranty for Tanks covers parts only. Buyer’s sole and exclusive remedy in the event of a breach of the Tank warranty is limited to replacement parts.
- Delivery, Inspection and Title for Goods Sold FOB Seller’s Facility: This paragraph applies where sale terms are FOB Seller’s Facility as specified in Seller’s Quotation. Unless otherwise stated in writing, shipments and deliveries are FOB Seller’s facility in Milwaukee, Wisconsin and title and risk of loss pass to Buyer immediately prior to loading at Seller’s facility. Buyer is responsible for all costs of loading and transportation from Seller’s facility including carrier freight insurance covering the goods during loading, while in transit and in unloading and any third-party cargo insurance. Buyer acknowledges and agrees that if Seller procures transportation on Buyer’s behalf under FOB Seller’s Facility terms, in procuring freight insurance for the goods Seller may rely on Buyer’s reasonable declaration of value for goods Buyer supplies (“Buyer’s Declared Value”). In quoting freight charges in this scenario, Buyer is providing an estimate only and Buyer shall be responsible for actual freight and shipping charges, including any detention or demurrage charges actually incurred. Seller shall not be liable for any loss of or damage to goods occurring during loading, while in transit or during unloading, even if such loss or damage exceeds the insurance limits. Seller retains a purchase money security interest in the goods until all payments (including deferred payments) are received in full. Upon Seller’s request, Buyer agrees to do all acts necessary to perfect and maintain such security interest, including executing a security agreement.
- Delivery, Inspection and Title for Goods Sold FOB Buyer’s Destination: This paragraph applies where sale terms are FOB Buyer’s Destination as specified in Seller’s Quotation. Unless otherwise stated in writing, all prices, quotes, order acknowledgements, shipments and deliveries are FOB Buyer’s destination at the location identified in the PO, determined by the point where a public road ends at the destination (“Destination”). Title and risk of loss pass to Buyer upon arrival of the goods at the Destination, unless within forty-eight (48) hours after arrival, Buyer provides written notice to Seller that the goods are non-conforming. Seller shall not be liable for loss of or damage to goods occurring during loading, unloading or transit unless Buyer (a) inspects the goods prior to unloading; (b) provides Seller written notice of loss or damage to the goods within forty-eight hours after the goods arrive at the Destination; and (c) preserves evidence of the damaged goods such that Seller may make a claim for damages with the carrier and/or third-party insurer. In procuring freight insurance for the goods, Seller may rely on Buyer’s reasonable declaration of value as to any goods Buyer supplies Seller in conjunction with the goods described in the PO (“Buyer’s Declared Value”). However, in no case shall Seller be liable for any loss of or damage to goods that occur during inspection or unloading. Seller retains a purchase money security interest in the goods until all payments (including deferred payments) are received in full. Upon Seller’s written request, Buyer agrees to do all acts necessary to perfect and maintain such security interest including executing a security agreement.
REGARDLESS OF DELIVERY TERM (FOB SELLER’S FACILITY OR DESTINATION) SELLER DOES NOT GUARANTEE A FIRM DELIVERY DATE. DELIVERY DATES IN THE QUOTATION ARE ESTIMATES ONLY. DELIVERY DATES ARE SUBJECT TO THE AVAILABILITY OF PARTS, COMPONENTS AND MANUFACTURING CAPACITY AT SELLER’S FACILITY.
- Assumption of Risk and Limitation of Seller’s Liability: Buyer assumes all risk and liability for inspection, unloading, storage, and use of goods. Notwithstanding any term or condition herein, in no event will Seller be liable (a) for indirect damages (including but not limited to, special, incidental and consequential damages, even if Seller has been advised of the possibility of same e.g., lost profits, rental costs, downtime, liquidated damages, labor costs for repairs or other associated work, installation charges, transportation charges, remediation of spills, spare parts procured from OEMs, storage costs, demurrage charges, etc.); or (b) for direct damages in an amount exceeding the invoiced price of the goods Buyer paid to Seller. Buyer expressly agrees that this limitation of liability is an allocation of risk constituting part of the consideration supporting sale of the goods.
- No Waiver; Modification; Entire Agreement: Seller’s waiver of any breach of these Terms shall not constitute a waiver of any other breach. Seller’s Quotation and these Terms constitute the entire understanding and agreement between Seller and Buyer and may only be modified or amended by a written document or change order signed by one of Seller’s officers.
- Cancellation or Breach; Remedies. In the event Buyer cancels an order after issuing a PO, fails to take delivery or timely pay Seller’s invoice, Seller’s damages shall be, at Seller’s option, restitution of the costs Seller has incurred since the PO was issued, or Seller’s damages for breach of contract.
- Venue; Choice of Law. This Quotation and any resulting contract for the sale of products shall be interpreted and governed by the laws of the State of Wisconsin, without regard to its conflict of law principles. Buyer expressly agrees that any dispute will be resolved by a court of competent jurisdiction in the State of Wisconsin and Buyer expressly consents to personal jurisdiction in Wisconsin courts.
- Interest; Costs of Collection. Buyer agrees that any unpaid invoice amount shall accrue interest at the rate of 1.25% per month. In the event Seller must seek legal action to recover amounts due and owing or for other breach, Seller shall be entitled to recover its costs of collection including Seller’s actual attorney’s fees and costs.
Updated March 1, 2023