STANDARD TERMS AND CONDITIONS
The following terms and conditions shall apply to all sales of products manufactured or distributed, or services rendered, by Tri-Energy Solutions, LLC, a Michigan limited liability company d/b/a StorTronics (“StorTronics”) to a buyer and/or any and all agents of a buyer (collectively, “Buyer”) in whatever manner or form Buyer is identified in a purchaser order, invoice, agreement, contract or other document evidencing a sale or transfer of products or services by StorTronics (each a “PO”).
1. Acceptance of Order. Any PO submitted by Buyer to StorTronics, whether or not StorTronics’ standard form of agreement is used, shall be deemed to be an irrevocable offer by Buyer to purchase the products and services described in such PO, and Buyer's offer will not be accepted by StorTronics unless and until an acceptance in writing is sent to Buyer by an authorized representative of StorTronics. Any acceptance by StorTronics of a PO, and all terms and prices contained in such PO, will be subject to these standard terms and conditions, together with any final written proposal provided by StorTronics, which shall be deemed incorporated by reference into these terms. Any other additions to or modifications of these standard terms and conditions shall not be effective unless expressly accepted by StorTronics and Buyer in writing.
2. Payment Terms. Except as otherwise provided herein or in any acceptance letter furnished by StorTronics to Buyer, payment in full will be made in advance for all products by credit card or other payment method approved by StorTronics. In all other circumstances, payment by Buyer shall be made, without offset or deduction, net thirty (30) days from date of invoice unless a longer term for payment has been agreed upon by StorTronics in writing. At the sole option of StorTronics, interest shall accrue and be payable upon StorTronics’ demand on amounts not paid by Buyer when due at the lower of: (1) one and one-half percent (1.50%) per month, or (2) the highest rate of interest then permitted by applicable law. To secure payment of all amounts due StorTronics, Buyer hereby grants StorTronics a security interest in and to all products, parts, accessories, tools, equipment and materials which may be sold and/or furnished by StorTronics to Buyer, and in all proceeds and products of the foregoing.
3. Returns. All sales are final. No goods may be returned without StorTronics’ prior issuance of a Return Material Authorization (“RMA”) number. The RMA number must appear on all packages returned to StorTronics and referred to in all related correspondence. Goods returned with freight due and/or without payment of a restocking charge of 25% of the invoice will be refused.
4. Shipping and Risk of Loss. All products described in the PO are sold EXW Livonia, Michigan or EXW North Las Vegas, Nevada at StorTronics’ loading dock.
5. Intellectual Property. Any and all intellectual property associated with the goods sold under the PO is the result of the cumulative work of StorTronics and represents years of research and development. Except for the right to use the goods in accordance with the purposes for which they were intended, no other right, license or grant is made or implied to Buyer unless otherwise expressly agreed in writing by the parties.
6. Cancellations. StorTronics may cancel a PO at any time without penalty or other liability if StorTronics determines in its sole discretion that it is unable to meet the requirements of the PO.
7. Delivery/Shipments. Packaging requirements will be determined by StorTronics in its sole discretion. All shipments will be directed to the location described in the PO. If Buyer fails to specify a mode of shipment, StorTronics will select the mode which in its estimate provides the lowest reasonable transportation cost. Unless Buyer requests otherwise, StorTronics may choose to insure any shipments with the carrier and pass the costs of such insurance along to Buyer.
8. Specifications. Buyer agrees to provide StorTronics with any and all required specifications relating to goods described in a PO. StorTronics’ obligations hereunder shall not commence until Buyer has provided StorTronics with any such required information. If Buyer fails to provide
such specifications, then StorTronics may terminate any affected PO by providing written notice to Buyer.
9. Restrictions. Buyer will not cause or permit the modification, distribution, reverse engineering, decompilation, disassembly or other translation of any goods or integrated software sold to it pursuant to any PO. Buyer will not alter, change, or remove from such goods any identification or markings, including, patent or copyright notices and trademarks.
10. Inspection and Acceptance. Unless StorTronics agrees in writing to the contrary, Buyer shall inspect each of the products delivered pursuant to a PO within five (5) days of delivery. In the event Buyer fails to notify StorTronics of any defect, deficiency, omission, or nonconforming delivery with respect to equipment or other products delivered to Buyer within such five (5) day period following delivery, Buyer shall be deemed to have unconditionally accepted delivery of each such product. If any product delivered or required to be delivered by StorTronics to Buyer shall be defective, omitted, or otherwise nonconforming, Buyer must deliver a written notice to StorTronics within the five (5) day period following the nonconforming delivery by StorTronics, specifying in said notice the particular defect, deficiency, omission, or nonconformity upon which Buyer is relying to justify rejection of delivery. Buyer hereby agrees that such five (5) day period is a reasonable period of time after delivery within which to reject such products. Within ten (10) business days following StorTronics’ receipt of Buyer's written notice of rejection with respect to any products sold, StorTronics may notify Buyer in writing of StorTronics’ intention to cure any such defective or nonconforming goods, and StorTronics shall have a reasonable period of time within which to make a conforming delivery or to otherwise correct or remedy the specific condition upon which Buyer is then relying in rejecting the equipment or other products. Any rejection properly made by Buyer shall apply only to nonconforming goods, and Buyer is required to complete its purchase of all other products pursuant to any and all POs, strictly in accordance with the terms and conditions thereof.
11. Safety Disclaimer. By accepting delivery and utilizing the goods and services provided pursuant to any PO, Buyer acknowledges and accepts all the safety information provided by StorTronics and accepts StorTronics’ disclaimer of any and all liability for personal injuries associated with the use of such goods and services. Buyer agrees not to hold StorTronics liable for any injuries that occur in the installation, operation, maintenance, use or possession of the goods provided pursuant to a PO. Buyer acknowledges that the goods sold pursuant to a PO may include prototypes and may not have undergone product safety testing. Buyer will instruct all of its employees and other operators of such goods to exercise extreme caution when operating such goods and will undertake no efforts at repair or modification of such goods without the prior consent and direction of StorTronics.
12. Indemnification of StorTronics. Buyer assumes all liability of any nature whatsoever arising out of the use or possession of all goods and services provided under a PO and agrees to indemnify, protect, defend and hold harmless StorTronics, it’s officers, employees, stockholders, successors and assigns with respect to any claim, suit, action or judgment of any kind arising out of the installation, operation, maintenance, use or possession of the goods or services provided pursuant to any PO and any expenses related thereto including attorneys’ fees and costs.
13. WARRANTIES; DISCLAIMER. StorTronics warrants that each battery pack produced by StorTronics shall, for a period of one (1) year from StorTronics delivery of such unit, be free from defects in materials and workmanship and shall conform to its written specifications provided by StorTronics. This warranty does not cover defects or failure caused by improper handling, storage, maintenance or repair or by any modification, abuse or abnormal use of such goods after delivery by StorTronics. For any products produced by a third party and distributed by StorTronics, StorTronics will, as permitted by the third party, pass through any applicable warranties directly to Buyer and StorTronics will have no further obligations to Buyer with respect to such products. THE FOREGOING LIMITED WARRANTIES WITH RESPECT TO PRODUCTS ARE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES OF QUALITY OR PERFORMANCE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS OF SAID EQUIPMENT AND PRODUCTS FOR ANY PARTICULAR PURPOSE. STORTRONICS HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS OR IMPLIED, REGARDING THE SUITABILITY OF ANY PRODUCTS SUPPLIED BY STORTRONICS WITH RESPECT TO INSTALLATION IN ANY PARTICULAR SYSTEM OR WITH RESPECT TO ANY OTHER CLAIM. STORTRONICS MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO ANY SERVICES PERFORMED BY STORTRONICS OR ITS AGENTS. StorTronics does not authorize any person or entity (including, without limitation, StorTronics agents and employees) to make any representations (verbal or written) contrary to the terms of this limited warranty or its exclusions. Such terms of this limited warranty and its exclusions can only be effectively modified in writing and only by the President of StorTronics.
14. WARRANTY CLAIMS. If Buyer believes that any goods warranted by StorTronics are defective, then Buyer must obtain a RMA number from StorTronics prior to shipment of such defective goods back to StorTronics. The RMA number must appear on all packages returned to StorTronics and be referred to in all related correspondence. Return shipment of the damaged goods shall be at Buyer’s expense, and such goods shall not be returned, repaired or discarded without StorTronics’ written consent. Returned goods will be subject to inspection and final determination as to whether or not any adjustment is due. If the inspection shows that the warranty in Section 13 for the goods has been breached, then Buyer’s exclusive remedy against StorTronics, and StorTronics’ sole obligation, for any and all claims (whether for breach of warranty, breach of contract, tort (including negligence and strict liability) or otherwise) shall be limited to, at StorTronics’ option, repairing or replacing the defective good or refunding the purchase price of such defective good. Such repair, replacement or refund is the sole remedy with respect to defective goods. Refunds may be applied against Buyer’s open balances at StorTronics’ sole discretion. In no event shall StorTronics have any liability for damages in an amount exceeding the purchase price of the related defective goods nor shall StorTronics have any liability for incidental or consequential damages. The foregoing remedies (repair, replacement or refund) are Buyer’s sole and exclusive remedies with respect to all warranty claims on defective goods (including any express warranties and/or under any implied warranties not negated by these Terms and Conditions). Warranty claims must be made within the warranty period or are forever waived. The provisions of this Section limiting remedies to repair, replacement, or refund and limiting liability and excluding consequential or incidental damages are independent provisions and any determination that any such limitation of remedies fails of its essential purpose or any other determination that any of the aforementioned provisions are unenforceable, shall not be construed to make any other provision of these Terms and Conditions unenforceable.
15. DAMAGES AND LIMITATION OF LIABILITY. IN NO EVENT SHALL STORTRONICS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM, CONNECTED WITH OR RELATING TO THE PROVISION OF ANY GOODS OR SERVICES TO BUYER UNDER ANY PO, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT STORTRONICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF BUYER GOODWILL, ATTORNEYS’ FEES, DAMAGE TO BUSINESS OR BUSINESS RELATIONS, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, CLAIMS BY CLIENTS OR CUSTOMERS OF BUYER, OR DAMAGES FOR ECONOMIC LOSSES OR PROPERTY DAMAGE ARISING FROM, CONNECTED WITH OR RELATING TO STORTRONICS’ ACTS OR OMISSIONS, WHETHER UNDER NEGLIGENCE, STRICT LIABILITY, ENTERPRISE LIABILITY OR OTHER PRODUCT LIABILITY THEORIES. STORTRONICS’ TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT PAID TO STORTRONICS PURSUANT TO A PO. ANY ACTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE PRODUCTS OR SERVICES FURNISHED BY STORTRONICS MUST BE BROUGHT BY BUYER WITHIN ONE (1) YEAR FROM THE DATE THE CAUSE OF
ACTION ACCRUES, OR THE APPLICABLE STATUTORY PERIOD, WHICHEVER IS SHORTER.
16. Force Majeure. StorTronics will not be deemed to be in default or otherwise responsible for delays or failures in performance resulting from acts of God, acts of war or civil disturbance, epidemics, governmental action or inaction, fires, earthquakes, unavailability of labor, materials, power or communication, or other causes beyond StorTronics’ reasonable control.
17. Choice of Law. All POs accepted by StorTronics shall be deemed entered into within the state of Michigan (U.S.A.), and the validity, performance and construction of such PO and these standard terms and conditions shall be governed by the laws of said state, without regard to principles of conflicts of law. In the event suit is filed by StorTronics against Buyer, Buyer consents to subject matter and personal jurisdiction and venue in the state and federal courts in the State of Michigan (U.S.A.). Buyer further agrees that in the event Buyer wishes to initiate litigation against StorTronics for any reason, then absent StorTronics’ written consent to the contrary, Buyer agrees that any such lawsuit(s) shall only be brought against StorTronics in the appropriate state or federal court in the state of Michigan (U.S.A.).
18. Waiver. Any failure of StorTronics to enforce any of the provisions, rights or remedies of any PO or these standard terms and conditions, to exercise any election or option provided therein or herein, or to require at any time performance of any of the provisions thereof or hereof, shall in no way be construed to be a waiver of such provisions, rights or remedies, nor in any way construed to affect the validity or enforceability of such PO or these standard terms and conditions, or any part thereof or hereof, or the right thereafter to enforce each and every such provisions, right or remedy.
19. Insolvency. StorTronics may immediately cancel all or part of any PO between StorTronics and Buyer, without any liability to StorTronics, in the event of any of the following: (a) insolvency of Buyer; (b) Buyer’s filing of a voluntary petition in bankruptcy; (c) the filing of an involuntary petition to have Buyer declared bankrupt provided it is not vacated within ninety (90) days from the filing date; (d) the appointment of a receiver or trustee for Buyer provided such appointment is not vacated within ninety (90) days from the appointment date; or (e) the execution by Buyer of an assignment for the benefit of creditors.
20. Amendment. No amendment or modification of these terms and conditions or any PO shall be of any force and effect unless in writing and signed by the party claimed to be bound thereby, and no amendment or modification shall be effected by an acknowledgment or acceptance by StorTronics of a purchase order from Buyer containing any different terms and conditions. In the event such new terms and conditions are inconsistent with these terms and conditions, these terms and conditions shall govern any such inconsistencies.
21. Severability. Whenever possible, each provision of these terms and conditions and of any PO will be interpreted in such a way as to be effective and valid under applicable law. If a provision is prohibited by or invalid under applicable law, it will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions.
22. Assignment. These standard terms and conditions, and any related PO, shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns; provided, however, that Buyer shall not transfer, sell, assign, pledge or encumber any of its rights, interests, or obligations hereunder or thereunder without the prior written consent of StorTronics.