TRUE Breaker Services Terms and Conditions
Agreement. The accompanying signed Quotation & Acknowledgement, together with the terms and conditions set forth herein, constitute the entire Agreement (hereinafter, the “Agreement”) between True Breaker Services (the “Company”) and You, with “You” being the Company’s counterparty listed on the accompanying Quotation & Acknowledgment. The words “Your” and “Yours” refer herein to the possessive form of “You,” the counterparty.
Services and Products Supplied Are Governed by this Agreement. The Company will provide the services and supply the products specified on the accompanying Quotation & Acknowledgement in accordance with these Terms and Conditions which You agree govern all activities subject to this Agreement. These Terms and Conditions supersede all prior or contemporaneous agreements or correspondence between the parties. Any changes or amendments to the Agreement must be in writing and signed by both parties or such changes or amendments shall be unenforceable.
Quoted Price Policy. Quoted prices listed in the accompanying Quotation & Acknowledgment are firm for thirty (30) days and are subject to change without notice thereafter. If the completion of services or delivery of products to be supplied by Company occurs more than 90 days after the date of full execution of this Agreement, the Company may increase the price up to 1% of the unpaid balance for each month (or fraction thereof) from the date of full contract execution to completion date.
Taxes. Quoted prices exclude all taxes and regulatory fees. You (the Company’s counterparty as set forth in the accompanying Quotation & Acknowledgement) shall pay Company for all federal, state, or local taxes (other than income taxes) applicable to, measured by, or imposed upon the services rendered or products supplied by Company.
Payment Terms. Payment by You to Company is due within fifteen (15) days of the completion of the services or delivery of the product supplied by Company, whichever comes later. You shall pay interest on the total sum of any late, outstanding amount due and owing at the lower of 18% per month or the highest legal rate on all payments 30 days or more overdue (without prejudice to Company’s right to immediate payment). Payment by You shall not be contingent upon the results of any testing procedures not agreed to by the Company in writing. If You delay the completion of services or the delivery of the product(s) to be supplied by the Company, the Company may require immediate payment for materials obtained by the Company and work performed by the Company regardless of whether the contracted-for services have been completed. In addition, the Company may require advance payment (in part or in full) or terminate this Agreement and recover reasonable cancellation charges or damages, at any time the Company reasonably believes payments due and owing are at risk due to Your financial condition or potential insolvency. You shall be liable for and pay all collection costs, including reasonable attorney's fees, necessary to recover money owed by You to the Company.
Price Quotation Expiration. Price quotations are void and shall be deemed retracted and withdrawn unless accepted by You within thirty (30) days from the date of the quotation. Regardless of timing, however, the Company reserves the right to change or withdraw its price quotation or any elements thereof upon notice to You so long as the prior quotation has not been accepted by You in advance of any changes to or withdrawal of the quotation. Orders for product(s) or services made by You are not binding unless and until such orders are accepted in writing by the Company.
Packaging, Delivery, and Transportation Costs. Quoted prices include standard packaging for domestic shipment only and exclude transportation and delivery costs unless expressly stated in the accompanying Quotation & Acknowledgement. Completion of services contemplated pursuant to this Agreement as well as shipping dates are approximate and based upon prompt receipt of all necessary information and approvals from You. Unless You stipulate in writing that early shipment is impermissible, the Company reserves the right to ship product or materials prior to any stated contract shipping date. Repaired equipment and other equipment or materials furnished by the Company shall be delivered to You F.O.B. from the Company. Title to and the risk of loss of or damage to any material or equipment furnished by the Company under the contract shall pass to You F.O.B. from the Company. Risk of loss or damage to the material or equipment shall be with You at all times.
Warranty Period. The warranty period shall be the 12-month period commencing as of service completion or product delivery, whichever is applicable.
Limitation on Warranty Period. Notwithstanding the foregoing, the Warranty Period does not apply to products which have a life, under normal use, inherently shorter than the 12-month period set forth above. With respect to products supplied or manufactured by other companies, the Company limits itself to extending the same warranty it receives from the supplier or manufacturer.
Repaired, Reconditioned Equipment Warranty. The Company warrants that Your equipment repaired and/or reconditioned by the Company will: (1) be free of defects in material or workmanship during the Warranty Period; and (2) conform and operate during the Warranty Period in accordance with written specifications to which the Company has agreed upon provided that: (a) the repaired and/or reconditioned equipment has been stored, installed, operated, and maintained in accordance with any and all reasonable instructions of the Company and in accordance with standard industry practice; and (b) has not been subjected to tests other than those specified by the latest revision of American National Standards Institute (ANSI) for the particular product at issue. The Company accepts no responsibility for damage or loss due to reuse of components or equipment at Your direction.
New Product Warranty. The Company warrants that new products supplied by it will: (1) be new as of completion of services or installation; (2) be free of defects in material or workmanship, and (3) conform and operate in accordance with specifications to which the Company has agreed to, provided that: (a) the product has been stored, installed, operated, and maintained in accordance with standard industry practice; and (b) the product has not been subjected to tests other than those specified by the latest revision of American National Standards Institute (ANSI) for particular product or additional tests consented to by the Company in writing.
Product Infringement. The Company warrants that products used or included in the service(s) provided by Company will be free of rightful third-party patent or trademark infringement claims and the Company will indemnify You against liabilities arising from such claims. The Company will participate in or defend exclusively (at its sole option) actions brought against You for any such claim.
Limitation of Warranties. EXCEPT FOR THE ABOVE WARRANTIES, TRUE BREAKER SERVICES MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Oral statements or statements contained in general advertising pamphlets or other printed materials do not constitute warranties, and You acknowledge that you are not relying upon any such statements.
Sole Remedy. Following written notice from You describing in reasonable detail nonconformity with the above applicable warranties set forth herein, the Company’s sole obligation shall be, at its expense, to re-perform nonconforming service, to repair or recondition Your nonconforming repaired and/or reconditioned equipment, or to repair or replace (at its sole option) nonconforming new product.
The Company shall not be responsible for any removal, disassembly, transportation, or reinstallation of equipment, materials, or structures required to provide access to permit cure of such nonconformities.
The Company shall perform all warranty work Monday through Friday on a single-shift, straight-time basis. The premium portion of any over- or double-time work shall be at Your sole expense.
Limitation of Liability. You hereby acknowledge that the remedies set forth in Section 8 above are Your sole and exclusive remedies against the Company with respect to warranties.
The Company, its contractors and suppliers of any tier or position in the chain of distribution, shall not be liable in contract, warranty, tort (including negligence) or otherwise for damage or loss of other property or equipment, loss of profits or revenue, loss of use of equipment or power system, cost of capital, cost of purchased or replacement power or temporary equipment (including additional expenses incurred in using existing facilities), claims of customer, or for any special, indirect, incidental, or consequential damages whatsoever.
The liability of the Company with respect to the services provided or product delivered or from the manufacture, sale, delivery, resale, installation or technical direction of installation, maintenance or technical direction of maintenance, repair or use of any equipment covered or furnished under this contract, regardless of the theory upon which a claim is based, shall not exceed the lesser of the contract price or $10,000.00.
Indemnification. The Company shall: indemnify You for claims of third parties for physical damage to property and personal injury (including death) arising or resulting directly and solely from the negligence or willful misconduct of the Company or its employees provided that this indemnity shall not apply if damages are caused (in whole or in part) by You or Your employees' or agents' (1) misuse of the equipment or product; (2) act or omission contrary to safety procedures or instructions provided by the Company; or (3) improper storage, installation, operation, or maintenance of the equipment or product.
You shall: Indemnify and hold the Company harmless for all claims of injury, costs, damages, fines, and expenses (including reasonable attorney's fees) arising from: (1) existing site conditions; (2) release or threatened release of any contaminants or pollutants, including PCBs contained in Your equipment or at Your facilities, or (3) the negligence or willful misconduct of You and/or Your employees, agents or contractors.
Hazardous Substance. The Company will not handle, move, store, treat, or dispose of insulating oil, polychlorinated biphenyl, asbestos or other hazardous substances. If hazardous substances are found in equipment to be serviced on Your premises (if services are performed onsite), the Company may terminate this contract. Following termination, You shall pay the Company for work performed and costs incurred (including reasonable termination costs) up to the time of termination.
Force Majeure: Not withstanding any provision of the Terms and Conditions to the contrary, the Company's performance shall be excused to the extent its failure to perform is caused by an event or occurrence beyond its control without its fault or negligence, including and without limitation, an act of God, valid or invalid action by governmental authority, fires, floods, windstorms, explosions, riots, natural disasters, terrorism, wars, sabotage, labor problems (including lockouts, strikes, and slowdowns), inability to obtain electrical service or transportation, inability to obtain necessary labor, materials, or manufacturing facilities from usual sources, faulty castings or forgings, or court injunction or order, or due to any cause beyond the Company's reasonable control. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of such delay. The Company reserves the right to amend the price quotation as a result of increased costs from such delay.
Insurance. During the performance of its obligations under this Agreement, the Company shall obtain and maintain workman's compensation insurance and employer's liability insurance as required by law, as well as comprehensive general liability insurance. Upon request, the Company shall furnish a certificate evidencing the above coverage and applicable policy limits.
Termination. This Agreement may be terminated by You by written notice to the Company, but any such termination shall be contingent upon payment by You to the Company for reasonable charges based upon expenses already incurred and commitments made by the Company, plus a charge of ten (10) percent of the price quotation to compensate the Company for indirect costs resulting from termination.
Scrap Materials. All scrap material produced by the services or product(s) provided by the Company shall at Company’s option automatically become the Company’s property.
Site Exclusions. The Company shall not be liable or responsible in any way for any damages or liability arising from unanticipated, hidden or concealed site conditions of Your site or any site over which You have control and upon which the Company provides services or product(s).
Confidential information. All financial, statistical, operating and personnel materials and information, including, but not limited to manuals, designs, drawings and specifications, and computer software programs and related documentation relative to or utilized in the Company's business or in the business of any affiliate, or is acknowledged by You to be the valuable and confidential property of the Company. You shall keep such information confidential and shall instruct Your agents, employees and contractors regarding such confidentiality obligations. You shall not disclose, photocopy, or otherwise duplicate any such materials without the prior written consent of the Company.
Default/Breach. You shall be liable to the Company for any costs and reasonable attorney's fees the Company reasonably incurs to enforce the provisions of this Agreement.
Enforceability. If any provision of this Agreement is or becomes at any time unenforceable or invalid, no other provision of this Agreement shall be affected thereby, and the remaining provisions of this Agreement shall continue with the same effect as if such unenforceable or invalid provision shall not have been inserted in the Agreement.
Choice of Law. Subject to the agreement to arbitrate in paragraph 22 below, this Agreement shall be construed in accordance with the laws of Colorado.
Arbitration. In the event of any dispute, claim or controversy between or among the parties to this Agreement arising out of or relating to this Agreement or any breach thereof, including, without limitation, any claim that this Agreement or any of its parts is invalid, illegal or otherwise voidable or void, whether such dispute, claim or controversy sounds in contract, tort, equity or otherwise, and whether such dispute, claim or controversy relates to the meaning, interpretation, effect, validity, performance or enforcement of the Agreement, such dispute, claim or controversy shall be settled by and through an arbitration proceeding to be administered by the American Arbitration Association (or any like organization successor thereto) in the State of Colorado in accordance with the American Arbitration Association’s Commercial Arbitration Rules. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitrability of any such dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of the American Arbitration Association. Both the foregoing agreement of the parties to this Agreement to arbitrate any and all such disputes, claims and controversies and the results, determinations, findings, judgments and/or awards rendered through any such arbitration shall be final and binding on the parties hereto and may be specifically enforced by legal proceedings. Notwithstanding any provision of this Agreement relating to which state laws govern this Agreement, all issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and the federal common law of arbitration.