Acceptance. All sales of goods from Clarke Power Services, Inc. d/b/a Clarke Powered Solutions (“Seller”) to Buyer are subject to and are governed by the terms and conditions set forth below and on the face of this Agreement. These terms and conditions represent the final, complete, and exclusive agreement between Seller and Buyer with respect to the sale of Seller’s goods. The Seller’s Quote, Order Agreement, and these Terms and Conditions supersede any prior and/or contemporaneous agreements or correspondence between Seller and Buyer; any modifications to the Agreement and/or supplemental agreements must be provided in writing and signed by both parties. Clerical errors are subject to correction in all cases. Any provision of these Terms and Conditions that is invalid under applicable law or court order shall not in any way invalidate or affect the remaining provisions of these Terms and Conditions. ALL SALES OF GOODS ARE SUBJECT TO AND CONDITIONED ON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. BUYER’S FAILURE TO NOTIFY CLARKE IN WRITING OF ANY OBJECTIONS TO THESE TERMS WITHIN TEN DAYS AFTER BUYER’S RECEIPT HEREOF, AND BUYER’S ACCEPTANCE OF THE PRODUCT SPECIFIED IN THE ATTACHED SALES ORDER AND DELIVERED AGAINST ITS ORDER, CONSTITUTES BUYER’S ASSENT TO AND ACCEPTANCE OF THESE TERMS. SELLER HEREBY EXPRESSLY REJECTS ANY ADDITIONAL, INCONSISTENT OR CONFLICTING TERMS PROPOSED BY BUYER.
Payment Terms. Unless otherwise specifically agreed upon in writing, payment of net invoice is due (a) upon receipt of the invoice or (b) if Buyer has approved credit with Seller, 30 days after the invoice date. If payment is received after the due date, Seller may impose a late charge equal to 1.5% of the delinquent amount per month (or portion of a month). Buyer shall pay all costs of shipment of the Product ordered.
Shipping. All stated delivery dates are approximate and are EX WORKS Seller facility. Seller will use reasonable commercial efforts to schedule Buyer’s order for delivery as nearly in accordance with Buyer’s instructions as possible and advise Buyer accordingly. However, Seller does not guarantee, or assume any liability for failure to meet, any delivery date proposed by Buyer or Seller. If delivery is rescheduled by Buyer, Buyer shall pay to Seller all costs incurred by Seller as a result of the change. Buyer accepts responsibility to arrange, and pay all cost of shipping unless otherwise agreed upon.
Warranty. The Buyer’s sole and exclusive warranty for the goods is that provided by the engine manufacturer, unless otherwise stated in Seller’s quote to Buyer. Seller warrants that parts and accessories added to engine by Seller will be free from defects in material and workmanship during the warranty period. The Seller warranty period mirrors the warranty timeframe of the manufacturer warranty for the specific engine. Seller warrants that it has title to all goods furnished by Seller. Seller does not authorize any person to assume or create for it any obligation or liability in connection with the Product other than as expressly set forth herein.SELLER MAKES NO WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE, WHICH ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PRODUCT, OR FOR INDEMNIFICATION OF BUYER ON ACCOUNT OF ANY CLAIM ASSERTED AGAINST BUYER, OR FOR ANY OTHER DAMAGE OF ANY KIND, WHETHER DIRECT OR INDIRECT, NOT EXPRESSLY ASSUMED HEREUNDER.
Inspection and Claims for Shortages or Damaged or Defective Items. Buyer shall inspect all Product upon delivery and shall notify Seller in writing of any shortages in its order or any readily ascertainable damaged or defective Product within 30 days of delivery. Failure of Buyer to do so shall relieve Seller of any responsibility for such matters.
Taxes. Prices quoted do not include any taxes which may now or hereafter be applicable to or imposed upon the Product or services involved in completion of any purchase, including, without limitation, sales, use and similar taxes. Buyer shall pay or reimburse Seller or its subcontractors or suppliers, as applicable, for any such taxes paid by Seller or its subcontractors or suppliers.
Setoff. Seller shall have the right to credit toward the payment of any monies that may become due Seller hereunder any sums which may now or hereafter be owed to Buyer by Seller.
Default. If Buyer fails to make timely payment on any sale of goods from Seller to Buyer, Seller, in addition to any other remedies available to it, may at its option, (a) defer further shipment until such payments are made and satisfactory credit arrangements are reestablished or (b) cancel the unshipped balance of any order, and Buyer shall not have any cause of action or be entitled to any offset, counterclaim, or recoupment against Seller by reason of such action. In the event of Buyer’s default, Seller may exercise any and all remedies set forth in this document, any other agreement between the parties, and applicable law, all of which rights and remedies are cumulative.
Cancellation. Buyer may cancel an order at any time. Buyer shall reimburse Seller for expenses incurred by Seller for special tooling and components for which commitments have been made by Seller, and for expenses for work in process as of the date of cancellation for custom orders. Seller reserves the right to change for these expenses plus 5% of the total amount of such expenses.
Indemnification Buyer shall indemnify and hold Seller harmless from and against all suits at law and in equity and all liabilities, claims, demands and damages arising out of or attributable to (a) Buyer’s breach of any term hereof or (b) Buyer’s or user’s design, specifications, misapplication or modification of the Product, failure to perform required maintenance services, for actual or alleged infringement of any patent because of the specification, design or modification required by Buyer, or failure to cooperate with Product recalls.
Disputes. Buyer shall make no set-off, retention, or other deduction from amounts to be paid to Seller under the Contract without the express written consent of a duly authorized representative of Seller. This Contract shall be solely governed by, and construed in accordance with, the laws of the State of Ohio, U.S.A., without regard to conflicts of law principles that would recognize the application of any other law. Any controversy or claim arising out of or related to the Contract or the breach thereof, (a) shall be settled by arbitration administered by the American Arbitration Association in Cincinnati, Ohio under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, and (b) must be commenced prior to the first anniversary of the date of Buyer’s acceptance of the attached Sales Order. Notwithstanding the foregoing, Seller at all times shall have the right to seek such remedies through any court, wherever located, including without limitation injunctive relief, as it deems necessary or desirable to protect its confidential information and/or its intellectual property rights. If either party incurs any actual and reasonable expenses (including attorney’s fees, costs, expenses, and/or disbursements) in order to enforce its rights under, or to recover damages for a material breach or default by the other party of any obligations under, this Contract (including, for example, any costs associated with Seller’s repossession of the Product), the prevailing party shall be entitled to recover from the other party any such expenses incurred by the prevailing party.
Compliance with Law. Buyer shall comply with all applicable laws, including any U.S. laws and regulations that may have a direct application to Buyer, including by way of example but without limitation, U.S. export controls and economic sanctions, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and U.S. anti-boycott regulations. With regard to U.S. export controls and economic sanctions:
missiles and rocket systems; unmanned air vehicle systems;
chemical and biological weapons;
maritime nuclear propulsion;
non-U.S. vessels or aircraft;
military uses; or
research and development, scientific, or defense-related institute, organization, etc., related to or involved with any of the above.
Governing Language. This Contract was made in English. If any translation of the Contract conflicts with the English version or contains terms in addition to or different from the English version, the English version shall prevail.