Terms & Conditions
The following terms and conditions (these “Terms & Conditions”) apply to the sale of goods, materials or products (collectively, “Products”) and/or provision of services (“Services”) by Switchgear Solutions, Inc., an Arizona corporation and its affiliates (collectively, “Switchgear Solutions, Inc.”), to the customer identified on the Purchase Order to which these terms and conditions are attached (the “Customer”):
1. Purchase Orders. All Services or Products to be provided by Switchgear Solutions, Inc. to Customer shall be pursuant to a written purchase order executed by Switchgear Solutions, Inc. and the Customer (a “Purchase Order”), which shall, at a minimum, include a description of the Services and/or Products to be provided by Switchgear Solutions, Inc. (collectively, the “Work”), the compensation to Switchgear Solutions, Inc. therefor, and the time for completion of the Work. Switchgear Solutions, Inc., shall have no obligation to proceed with any Work until such time that it has received a fully executed Purchase Order and any progress payment required there under.
2. Change Orders. Any modifications of or additions to the Work described in the Purchase Order shall be evidenced by a written change order executed by the parties (a “Change Order”), describing in reasonable detail the modified or additional Work to be completed and any adjustments to the compensation to Switchgear Solutions, Inc. therefor. Switchgear Solutions, Inc. shall have no obligation whatsoever to commence or complete any additional or modified Work unless and until Customer and Switchgear Solutions, Inc. have executed a written Change Order with such terms and conditions as are mutually acceptable to the parties.
3. Prices. Except as provided herein, prices offered by Switchgear Solutions, Inc. for Services or Products in any written quote or estimate will remain in effect for a period of thirty (30) days after the date of the quote (the “Quote Date”). After thirty (30) day period, prices are subject to change. Prices for Products to be used in any Work (hereafter defined) which are obtained by Switchgear Solutions, Inc. from a third party, are subject to change at any time to account for any fluctuations in the market price after the Quote Date.
4. Taxes. Prices quoted are without taxes. Customer assumes responsibility for payment of all taxes in connection with the Products and/or Services received under this agreement, including, but not limited to sales, use, and transaction privilege taxes. Customer shall indemnify, defend, and hold harmless Switchgear Solutions, Inc., it affiliates, and their respective officers, directors, employees, and agents from and against any and all claims and losses related thereto, incurred in connection with Customer’s failure to pay such taxes, levies, duties, and assessments or incurred in connection with Switchgear Solutions, Inc.’s reliance on an exemption certificate provided by Customer.
5. Plans and Specifications. Switchgear Solutions, Inc. shall complete or provide all Work in substantial conformity with Customer’s specifications, drawings and descriptions (collectively, “Customer specifications”). Switchgear Solutions, Inc. shall have no liability to Customer for any delays, damages or claims of any kind arising from defects, omissions, errors or deficiencies in the Customer specifications and Customer shall defend, indemnify and hold Switchgear Solutions, Inc. harmless from and against any liability, damages or claims arising there from.
6. Payment Terms. Payment terms are net thirty (30) days from the date that Switchgear Solutions, Inc. sends an invoice to Customer for the amounts due. Any amounts not paid within such thirty (30) day period shall accrue interest thereafter until paid in full at a rate of eighteen percent (18%) per annum, computed on a 365/360 day year basis.
7. Warranty. Switchgear Solutions, Inc. warrants that Products and Services provided by Switchgear Solutions, Inc. to Customer are free from defects in material and workmanship. Switchgear Solutions Inc.’s obligation under this warranty is limited to correction of defects in Products or Services which were provided by Switchgear Solutions, Inc. Within ten (10) calendar days after discovery of any defective Services or Products provided by Switchgear Solutions, Inc., Customer shall provide Switchgear Solutions, Inc. written notice of such defect. This warranty does not cover any repairs or replacement required due to accident, abuse, misuse, natural or man-made disaster, or any unauthorized disassembly, repair, or modification, the failure of Customer to properly use, store or maintain the Products provided, or the negligence or fault of Customer or any third party. Switchgear Solutions, Inc. shall have no liability to Customer for any: (a) consequential or special damages arising from the breach of the warranty contained herein, including, without limitation, any costs, damages or loses attributable to loss of production or down time; or, (b) damages to or from Products or Services not furnished by Switchgear Solutions, Inc; or, (c) repair, replacement or other expenses incurred by Customer in correcting defective Products or Services provided by Switchgear Solutions, Inc. With respect to repair Services, Switchgear Solutions, Inc’s warranty will remain in effect for a period of twelve (12) months from the date that Switchgear Solutions, Inc.’s Work is completed. With respect to new equipment, Switchgear Solutions, Inc’s warranty will remain in effect until the earlier of: (i) twelve (12) months from the time the new equipment is placed into service; or, (ii) eighteen (18) months from the date of delivery to the Customer. Switchgear Solutions, Inc’s warranty for new equipment shall apply only if Customer properly stores, maintains and operates said equipment in accordance with the original equipment manufacturer’s procedures and specifications. Except for Switchgear Solutions, Inc’s express warranty contained herein, Switchgear Solutions, Inc. is not making and hereby expressly disclaims any other implied or express warranties with respect to the Services and Products.
8. Indemnification. Switchgear Solutions, Inc. will indemnify and hold Customer harmless from and against any claims, damages or liability, including reasonable attorney’s fees and costs, resulting from Switchgear Solutions, Inc.’s negligence or willful misconduct. Customer will indemnify and hold Switchgear Solutions, Inc. harmless from and against any claims, damages or liability, including reasonable attorney’s fees and costs, resulting from Customer’s negligence or willful misconduct. Under no circumstances will either party be liable to the other party for indirect, consequential, special or liquidated damages.
9. Shortages, Defects or Errors. Customer shall give prompt written notice to Switchgear Solutions, Inc. of any shortages, defects or errors in any Products shipped, which notice shall be given to Switchgear Solutions, Inc. no later than ten (10) business days of Customer’s receipt of the Product.
10. Title. Title to Products provided by Switchgear Solutions, Inc. shall not pass to Customer until Switchgear Solutions, Inc. has received full payment of all amounts due for all Services performed and Products provided by Switchgear Solutions, Inc.
11. Cancellation. Customer may cancel a Purchase Order by providing written notice to Switchgear Solutions, Inc., provided, however, Customer will be obligated for all unpaid Work completed up to and including the date that Switchgear Solutions, Inc. receives written notice of cancellation, plus Switchgear Solutions, Inc’s reasonable profit for uncompleted Work under the Purchase Order.
12. Force Majeure. Neither Switchgear Solutions, Inc. nor the Customer shall be liable for any damages, claims or liability of any kind arising from delay in performance caused by a “Force Majeure Event”. As used herein,
“Force Majeure Event” shall mean acts of God; explosion; fire; extreme weather conditions; flood; drought; epidemic; earthquake; riot; insurrection; blockade; war or other hostilities; strike, lockout or other industrial disturbance; act or restraint of governmental authority whether valid or invalid; shortages of materials or Products to be incorporated in the Work, and any other cause or event which is reasonably beyond the control of the party and which the party is not able to overcome by the exercise of reasonable diligence, provided, however, that neither party shall be required to settle any strike, work stoppage or other labor dispute on terms which, in its opinion, are unsatisfactory. If any delay in Switchgear Solutions, Inc’s performance is attributable to a Force Majeure Event, the time for performance shall be extended for a period equal to the time of the delay caused by the Force Majeure Event.
13. Access and Cooperation. Customer shall provide Switchgear Solutions, Inc. access to the Work site at all times during Switchgear Solutions, Inc.’s normal hours of business to enable Switchgear Solutions, Inc. to complete the Work and shall otherwise cooperate with Switchgear Solutions, Inc. so that the Work may be completed on a timely and efficient basis. Such cooperation shall include, without limitation, providing information to Switchgear Solutions, Inc. necessary to obtain permits or other required governmental approvals for the Work and coordination with Customer’s other contractors or employees to enable Switchgear Solutions, Inc. to complete the Work without interference or interruption.
14. Jurisdiction, Venue and Waiver of Jury Trial. These Terms & Conditions and all Purchase Orders between Switchgear Solutions, Inc. and Customer shall be interpreted and enforced according to Arizona substantive laws, without regard to Arizona’s choice of law provisions. Any disputes between the parties arising from these Terms & Conditions and any Purchase Order shall be brought and maintained in a court of competent jurisdiction in Arizona.
15. Attorney Fees. In the event that either party hereto institutes an action or other proceeding to enforce any rights arising under these Terms & Conditions or any Purchase Order, the party prevailing in such action or other proceeding shall be paid all reasonable costs and reasonable attorney’s fees by the other party.
16. Entire Agreement, Incorporation and Modification. These Terms & Conditions and the applicable Purchase Order contain the entire agreement between the parties and all prior understandings or agreements are merged into these Terms & Conditions. These Terms & Conditions are hereby incorporated in and as a part of all Purchase Orders. To the extent that there is any conflict in the terms of these Terms & Conditions and the terms of a Purchase Order, these Terms & Conditions shall control, unless the Purchase Order, by its express terms, supersedes these Terms & Conditions by specific reference to the provision of these Terms & Conditions so modified. No modification of these Terms & Conditions or any Purchase Order shall be of any force or effect unless such modification is in writing and executed by both of the parties.
17. Notices. All notices or other communications required or provided ot be given by either party shall be in writing and shall be hand delivered or sent via facsimile or by United States first class mail, postage prepaid. Notices shall be deemed given upon hand delivery, or if sent via facsimile, upon confirmation of transmission of the communication, or if mailed, three (3) calendar days after such notice is deposited in the mail as aforesaid and addressed to the parties to the addresses set forth in the Purchase Order. Any party may change the address to which notice shall be delivered or mailed or sent via facsimile by written notice duly given.
18. Severability and Waiver. The invalidity or unenforceability of any provision hereof shall in no way effect the validity or enforceability of any other provision thereof. Any waivers must be in writing and signed by the party sought to be charged. The waiver by any party of a right provided there under shall not be deemed to be a continuing waiver of that right or a waiver of any other right.