All purchase orders incorporate and are governed by the following terms and conditions of sale (“Terms”) between Eagle Eye Power Solutions, LLC (the “Company”) and purchaser identified on the face of the purchase order (the “Customer”) for the sale of goods and services (“Products”). In the case of any conflict between these Terms and the face of the purchase order (the “PO”), these terms shall control. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms
1. Formation of the Contract. A PO is deemed by the Company to be an offer to purchase, which the Company may accept or reject at its sole discretion. The Company’s acceptance of an offer to purchase is binding on the Company only if such acceptance is made (i) by written instrument or, (ii) if not by written instrument, by shipment of the Products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by the Company). The Company’s acceptance is subject to these Terms. These Terms, along with the face of the PO to the extent there is no conflict between the two, constitute the entire agreement between the Company and the Customer. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Once accepted by the Company, the PO is binding on the Customer. If the Company agrees, in its sole discretion, to modify or cancel a PO, the Customer hereby agrees to pay a re-stocking fee equal to no less than 25% of the price of Product ordered but no longer included in the PO. Custom or made to order products cannot be modified and are not cancellable.
2. Rejection of Additional Terms. Any proposal by Customer that includes different or additional terms that vary from these Terms are objected to by the Company and disallowed. Notwithstanding the foregoing, any such counterproposals by Customer shall not operate as a rejection of the contract of sale, but as a rejection of the additional or different terms.
3. Price. All shipments will be billed at prices in effect at the date of fulfillment of the PO unless otherwise stated. In the event of a quotation by the Company, the price quoted is valid for thirty (30) days unless otherwise specified. If a PO is not received and accepted by the Company within the period stated, the Company may review and revise its prices. All prices for Products are based on the quantities quoted, and any change in the quantities may affect the price. No discounts will be allowed unless specifically agreed to in writing by the Company. Notwithstanding previous instances of the Company’s notice to the Customer regarding price changes, prices are subject to change without notice. Product specifications, designs, and packaging may change without notice. The Company may substitute Products of comparable quality, form and function for Products listed in Customer’s PO or similar document.
4. Costs and Taxes. Customer shall pay the costs of delivery of the Products. Prices do not include sales, use, excise or similar taxes, or other charges. Any such tax or charge that Customer is required to pay, or to collect and remit, to any government (national, state or local) and that are imposed on or measured by the sale will be added to the invoice price based on the applicable rates in effect at the time of shipment. If the Company prepays shipping, insurance, duties, or other related charges, the Customer shall be invoiced for them by Company.
5. Payment Terms. Unless otherwise agreed in writing payment is due upon acceptance of the PO. PO’s from Customer’s outside of the United States are only accepted on a prepaid basis. Standard Domestic Terms of Sale are NET 30 with approved credit. Custom made products for domestic customers shall be billed 50% at the time of order and 50% at time of shipment or NET 30 with approved credit. Major credit cards are accepted to specified limit. Credit card payments over $5,000 are subject to 2.5% of the purchase price processing fee. Customer agrees to be responsible for all applicable sales or use tax. If the Customer does not pay the whole of the invoice by the required due date, the Customer shall pay interest on the amount outstanding from the date due for payment until the actual date of payment at the rate of 1.5% per month or the highest rate permitted by law (whichever is lower). In the event of the Customer’s default of its payment obligations, the Company may: (i) suspend work on any PO’s until payment is made; and (ii) recover costs, fees, and expenses, including but not limited to recovery of attorney’s fees, court costs and fees, and collections costs.
6. Title and Delivery. Unless otherwise agreed to in writing Delivery is EXW (Company Facility or Origin) Incoterms® 2020. All shipments will be made on a freight prepaid and add basis unless otherwise agreed upon. The Company retains the right and title to the Products sold to Customer until the Company is paid in full for Products. The Customer shall obtain the right and title to the Products upon payment to the Company of the purchase price and any taxes, excises or other charges. All scheduled delivery dates are estimates based on a normal workload, and all deliveries are subject to change without liability to the Company. The Company will use commercially reasonable effort to make shipments as scheduled and may make partial shipments unless otherwise specified by the Customer. The Company will not be liable for any delays incurred due to causes beyond its reasonable control, including but not limited to acts of God, actions by any governmental authority, terrorism, fires, floods, windstorms, explosions, riots, protests, natural disasters, wars, sabotage, labor problems (including lockouts, strikes, and slowdowns), inability to obtain power, utilities, materials, labor, equipment, transportation, or court injunction. If the Company is not able to deliver the Products to the Customer, the Company may arrange for storage at Customer’s expense.
7. Inspection and Waiver of Claims. The Customer shall inspect the products promptly upon receipt for non-conformity (including without limitation non-conformity for quantity, quality, and/or defects). Failure by the Customer to provide the Company with written notice of a claim within five (5) days from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Customer of all claims with respect to such Products.
8. Returns. The Customer may not return Products without the Company’s express written permission, which Company will only provide if requested within thirty (30) days of delivery of the Products. Custom made Products are non-returnable and non-refundable. All shipments of returned Products must be marked with the assigned Returned Merchandise Authorization (RMA) number indicating cause and nature of any product defect. Requests for RMA numbers shall be sent to firstname.lastname@example.org. RMA numbers are valid for thirty (30) days from the date the Company provides Customer with the RMA number (the “Return Period”) and all associated Products must be received within the Return Period. If the Company does not receive all information it requires within the Return Period, the Company may return Products to the Customer at Customer’s sole expense. All returned products are subject to inspection. Products displaying use, misuse, or other damage will not be accepted. Shipping and handling charges will not be refunded. All returns are subject to a minimum 25% restocking fee. Customer shall not make any deduction for returned Products without prior written consent by Company.
9. Services. To the extent the Company agrees to install any Products, the Company shall supply only the personnel and services referred to in the applicable quotation. Company shall use reasonable efforts to meet any performance dates to render the services specified in writing, and any such dates shall be estimates only. Any other personnel or services necessary for the installation will be supplied by the Customer. If Customer requires Company personnel to attend site training and certification to gain access to a facility that time will be invoiced to Customer at the then current labor rate along with any travel expenses. The Customer shall: (i) be solely responsible for arranging the site to be ready to accept the installation and give the Company necessary access to the site; (ii) provide proper lifting equipment and all other equipment necessary to enable the Company to complete the installation within any agreed time limit; (iii) respond promptly to any Company requests to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary to carry out the Services in accordance with the requirements of this Agreement; (iv) provide such Customer materials or information as Company may reasonably request and Customer considers reasonable to carry out the Services in a timely manner and ensure that such Customer materials or information are complete accurate in all material respects; (v) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. If the Customer fails to fulfill its responsibilities related to the installation, any extra cost or expense incurred by the Company will be borne by the Customer and will be payable to the Company upon demand. In the event the Company agrees to installation dates and installation is delayed for reasons outside the control of the Company, the Customer will be solely responsible for expenses related to such delay until the installation can be completed. Dependent on the scope of the work the Company may, at it’s sole discretion, require that a Service Agreement and/or a Statement of Work be executed to define the work to be performed.
10. Company’s Rights. Customer’s failure to comply with these Terms constitutes default, and Company may defer further shipment(s) until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to the Company.
11. Limited Warranty. Subject to the limitation in this section, the Company warrants to Customer for a period of one (1) year from the date of shipment that the Products will be free from material defects in material or workmanship under normal use and service (the “Limited Warranty”). The Limited Warranty does not extend to Products subjected to misuse, negligence, accident, environmental conditions, improper storage or alteration by anyone other than the Company. Without limiting the foregoing, the Limited Warranty does not cover damage to Products arising from static or over-voltage caused by misuse. The Limited Warranty does not cover any liability associated with loss of recorded data, the cost of recovery of lost data, lost profits, or costs associated with any inspection or testing. Company will have no liability under the Limited Warranty for: (i) Products that are stolen; (ii) Products not sold to the original end user; or (iii) Products that fail due to fire, flood, acts of God or other causes beyond the Company’s reasonable control. Under these Terms, Customer’s sole remedy for any material defect under the Limited Warranty is the repair or replacement of the Products with the material defect, at the Company’s expense, returned to the Company with our prior written authorization. Prior to the return of any Products, Customer must obtain from the Company an RMA number within thirty (30) days of becoming aware of the suspected material defect. Requests for RMA numbers shall be sent to email@example.com. Failure by Customer to solicit an RMA number will invalidate the Limited Warranty. To the extent the Company determines at its sole discretion that the Products failed due to misuse, negligence, accident, environmental conditions, improper storage or alteration by anyone other than the Company, the Company may bill Customer for the repaired Products, and the cost to have the Products returned will be added to the invoice. In no case will the Company be liable for consequential, incidental, punitive, special or indirect damages; nor will the Company’s liability for damages exceed the amount Customer paid for the defective Product or Products. THE ABOVE EXPRESS WARRANTY (i.e., THE LIMITED WARRANTY), IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY AND SHALL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUCH OTHER WARRANTIES BEING DISCLAIMED. The duration of any implied warranty which cannot be disclaimed is limited to the one-year period specified in the Limited Warranty.
12. Governing Law and Venue. These Terms shall be construed, interpreted, and governed according to the laws of the State of Wisconsin, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any claim arising from these Terms shall be brought before federal courts based in the Eastern District of Wisconsin or Wisconsin State Court based in Ozaukee County, Wisconsin. Customer consents to personal jurisdiction in Wisconsin, and waives all objections to jurisdiction and venue in such courts.
13. Insurance Requirement and Subrogation Waiver. During the term of this Agreement, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000.00 with financially sound and reputable insurers. Upon Company’s request, Customer shall provide Company with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Company as an additional insured. Customer shall provide Company with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s
insurance policy. Except where prohibited by law, Customer shall waive, and require its insurer to waive, all rights of subrogation against Customer and Customer’s insurers.
14. Termination. In addition to any remedies that may be provided under these Terms, Company may terminate this Agreement with immediate effect if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
15. Confidentiality. All non-public, confidential or proprietary information of Company, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Company to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Company in writing. Upon Company’s request, Customer shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section, as well as costs and fees, including attorney’s fees, from Customer to enforce this Section.
16. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
17. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto, their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
18. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Waiver. No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.