Applicability. These terms and conditions of sale (“Terms”) and the accompanying sales quote, confirmation, order acknowledgement, or invoice (collectively with the Terms, the “Agreement”) are the only terms which govern the sale of the goods (“Goods”) by Averest, Incorporated (“Seller”) to the buyer identified on the sales quote, confirmation, order, acknowledge, or invoice (“Buyer”). The Agreement comprises the entire agreement between the parties, and supersedes all: prior or contemporaneous understandings, and agreements, whether written or oral, with respect to the subject matter hereof between the parties; and prior, contemporaneous, or subsequent communications, whether written or oral, from Buyer to Seller, regardless of the nature or terms of touch communication. Seller’s offer as set forth in the Agreement, is expressly conditioned on Buyer’s acceptance of these Terms, and these Terms prevail over any of Buyer’s terms and conditions of purchase, regardless of whether or when Buyer has submitted Buyer’s purchase order or such terms. Seller expressly rejects all additional or different terms and conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions or proposed alterations to this Agreement and does not serve to modify or amend this Agreement.
Delivery. The Goods will be delivered when and as provided in the Agreement. Any stated delivery date is contingent on Seller’s receipt from Buyer at the time of order of all information required to properly source, design, customize, and ship the Goods. Unless otherwise expressly provided elsewhere in the Agreement, Seller shall deliver the Goods to Seller’s shipping dock (“Delivery Point”). Delivery shall be made FOB point of shipment (ex works), and all shipments will be arranged by Buyer or made freight collect at Buyer’s risk. All taxes freight, insurance, and other shipping expenses shall be borne by Buyer. Seller is not liable for damage or losses incurred by Buyer as a result of freight damage or delays.
Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. Until full payment of all amounts due Seller, and as collateral security for the payment of all such amounts, Buyer hereby grants to Seller a lien on and security interest in and to all of the rights, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code of Utah.
Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods upon Buyer’s receipt and note any shipping damage on the signed bill of lading. Buyer’s failure to note obvious shipping damage on the signed bill of lading shall constitute a waiver of such damage. Buyer shall be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any Nonconforming Goods within five (5) days of Buyer’s receipt (“Inspection Period”) and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only that the product shipped is different than identified in Buyer’s purchase order or is damaged. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) have the right to inspect any Nonconforming Goods; (ii) repair the Nonconforming Goods at the location of such Nonconforming Goods; (iii) replace such Nonconforming Goods with conforming Goods; or (iv) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller as directed by Seller packaged in a like manner as originally delivered. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, deliver the replaced Goods to Buyer at the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
Price. Subject to adjustment pursuant to the Escalation Clause set forth in Section 21 below, Buyer shall purchase the Goods from Seller at the prices set forth in the sales quote and order acknowledgement (“Price”) in United States dollars; provided, however, that the Price is subject to change based on the following: (i) changes to the Goods’ specifications and designs requested by Buyer in writing and agreed to in writing by Seller; (ii) fees charged by Seller for expediting delivery dates as requested by Buyer and accepted by Seller; (iii) finance charges on past due amounts as provided by Section 6 below; (iv) shipping and storage fees as provided by Section 7 below; (v) processing fees imposed by enterprise resource planning (ERP) procurement and payment systems utilized by Seller. In addition, if the Goods require Seller or Seller’s agents to conduct one or more site visits at Buyer’s or its designee’s premises, Buyer shall be solely responsible for all costs Seller or Seller’s agent incurs, including but not limited to: (a) costs and time incurred for badging visits and Seller’s procedures related to the same; (b) costs incurred in commissioning of equipment; (c) travel expenses; (d) lodging; and (e) meals. Price is exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Payment Terms. Buyer shall pay all invoiced amounts due to Seller upon receipt of Seller’s invoice unless Seller’s invoice expressly states otherwise. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, actual and reasonable attorneys’ fees and costs. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend performance, including, without limitation, delivery of Goods, or limit or suspend credit extended to Buyer or otherwise modify payment terms, if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.All orders cancelled or materially changed after receipt by Seller shall be subject to a restocking fee equal to up to 35% of the retail price of the subject Goods (and up to 50% for custom orders), plus all shipping fees if such cancellation or change occurs after shipment. For purposes of the foregoing sentence, a “custom order” is any non-standard Good that requires modification or customization to meet Buyer’s requested specifications.
Shipping. Seller shall provide three options for shipping. (i) Buyer to arrange. Seller will notify Buyer of completed Goods with at least two weeks advanced notice and Buyer shall have up to one week after specified date to arrange for pick-up of the Goods at the Delivery Point. If pick-up does not occur within two weeks of notice above, Buyer will be subject to storage charges as provided by Section 8 below; or (ii) Prepay and Add. Seller to arrange shipment and cost will be added to the Buyer’s bill. At Buyers request, Seller will contact the Buyer with the total cost for shipment. If Buyer does not agree to the price the Buyer can arrange shipment but items must be picked up one week from Buyer’s proposed shipment date or Buyer will be subject to storage charges as provided by Section 8 below; or (iii) Seller Arranged on Buyer Account. At Buyer’s request, Seller may agree to arrange shipment and cost of the same will be added to Buyer’s account on credit. If Seller does not agree to this option, Buyer may choose either option (i) or (ii) above.
Storage. Any Goods that are still on Seller’s property one week after scheduled shipment date are considered to be in storage. Storage rate is charged on a per week basis at a rate set at the Seller’s discretion based on the size and nature of the Goods. One day into a new week constitutes a new week. In the event a storage charge situation begins, outstanding fees must be paid in full prior to shipping the Goods.
Disclaimer. Unless specifically quoted in the price of the Goods provided by Seller in writing, the Agreement does not include the provision of charger installations, conduit installation, or other electrical upgrades that the installation of the Goods may require, which are the Buyer’s sole responsibility and at Buyer’s sole expense. Ensuring compliance with all laws, regulations, ordinances, and governmental rules, including without limitation all building codes and ordinances, is Buyer’s sole responsibility. Further, Buyer acknowledges and agrees that the Seller is not responsible for disposal of the Goods at their end of life, with such decommissioning and disposal being Buyer’s sole responsibility and at Buyer’s sole expense.
Limited Warranty. Seller warrants to Buyer that, for a period of twelve (12) months from the date of Seller’s delivery of the Goods to the Delivery Point (“Warranty Period”), Seller’s assemblies of Goods (“Seller Assembly”) will materially conform to the specifications set forth in the sales quote and will be free from material defects in material and workmanship (“Warranty”). Seller does not warrant the Goods other than Seller’s assemblies and Buyer must consult applicable manufacturer’s warranties for warranties if any, applicable to Goods utilized in Seller’s assemblies, e.g., chargers, batteries, etc. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION, SELLER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.Seller shall not be liable for a breach of the Warranty of a Seller Assembly unless Buyer gives written notice of the defect of the Seller Assembly, reasonably described, to Seller within five (5) business days of the time when Buyer discovers or should have discovered the defect. Seller reserves the right to inspect the Seller Assembly subject to the notice before repairing or replacing the Seller Assembly. If upon inspection of the Seller Assembly no defect in material or workmanship is found, then Buyer may be assessed a labor charge for the diagnostic work. Seller, in its sole discretion, will determine whether the Seller Assembly has a defect in material or workmanship. This Warranty does not apply to any components of a Good supplied to Buyer by a third party or defects caused by a party other than Seller, including without limitation, defects caused by accidents, abuse, improper storage, installation or maintenance, misuse, normal wear and tear, deterioration, defaced or altered serial number plate, alterations not authorized by Seller in writing, or designs or specifications which were provided to Seller by Buyer for production of the Goods. The Warranty will be null and void if Buyer fails to pay all amounts due to Seller under this Agreement, and no waiver, alteration or modification of the foregoing warranty shall be valid unless made in writing and signed by a duly authorized employee of Seller.Manufacturer’s Warranties. (a) Chargers. All chargers are subject to their manufacturer’s applicable warranty, which goes into effect (i) at the date of shipment if no commissioning date has been scheduled in advance with the Seller, or (ii) the charger’s commission date, if a commissioning date has been scheduled in advance with Seller within not more than twelve (12) months of the charger’s shipment from Seller. The manufacturer’s warranty is void if Seller does not conduct the charger’s commissioning or if the charger is electrified prior to Seller’s commissioning. The manufacturer’s warranty does not include training, preventative maintenance, damage to chargers, or items supplied by the Seller to use in conjunction with the manufacturer’s goods. The foregoing is provided for reference only and is subject to changes at any time by the manufacturer, and the Buyer must consult with the manufacturer’s warranty directly for current terms (b) Batteries. All batteries are subject to their manufacturer’s warranty, which goes into effect from the date of sale. The manufacturer’s warranty does not include training, preventative maintenance, damage to batteries, or items supplied by the Seller to use in conjunction with the manufacturer’s goods. The foregoing is provided for reference only and is subject to changes at any time by the manufacturer, and the Buyer must consult with the manufacturer’s warranty directly for current terms.
Remedies. With respect to any valid Warranty claim, Seller shall, in its sole discretion, either: (i) repair the Seller Assembly (or the defective part thereof); or (ii) credit or refund the Price of such Goods at the pro rated contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. Nothing will be charged to the Purchase order that was previously provided. THE FOREGOING REMEDIES SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, SALES, PROFIT, REPUTATION OR GOODWILL, DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THE BUYER ASSUMES AND AGREES TO INDEMNIFY AND SAVE SELLER HARMLESS FROM ANY AND ALL LIABILITY WHATSOEVER THAT MAY ARISE FROM THE USE BY OR OF GOODS SOLD HEREUNDER, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER MATERIALS. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT BUYER PAID TO SELLER FOR THE GOODS.UNDER NO CIRCUMSTANCES IS SELLER RESPONSIBLE FOR DEFECTS IN BUYER’S DESIGN OR SPECIFICATIONS, NOR IS SELLER RESPONSIBLE FOR ANY DEFECTS WHICH ARE THE RESULT OF THE DESIGN OR SPECIFICATIONS PROVIDED BY BUYER. IN THE EVENT ADDITIONAL WORK IS TO BE PERFORMED BY SELLER TO ADDRESS ANY DEFECT CAUSED BY BUYER’S DESIGN OR SPECIFICATIONS, SELLER SHALL SUBMIT TO BUYER A NEW QUOTE, AND SUCH WORK SHALL BE PAID FOR BY BUYER AS AN ADDITIONAL CHARGE.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) business days after Buyer’s receipt of written notice of nonpayment; (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.
Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. 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.
Intellectual Property. Buyer agrees that this Agreement does not grant to Buyer, and that Buyer will not obtain or claim, any right, title, interest, or license to any intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets as defined by the Utah Uniform Trade Secrets Act (“Trade Secret”), know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all Goods, documents, work product and other materials that are delivered to Buyer under this Agreement. Buyer further agrees that it will not attempt to decipher, decompile, disassemble, or reverse engineer any of the Goods.
Confidential Information. All confidential information of Seller disclosed by Seller to Buyer, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” is and shall be treated by Buyer as confidential, and may only be used in connection with performing this Agreement. For purposes of this Agreement “Confidential Information” means all non-public information, including without limitation, specifications, samples, designs, plans, drawings, Trade Secrets, documents, data, business operations, pricing, discounts, or rebates. Notwithstanding the foregoing, Buyer may disclose Confidential Information if and only to the extent required by law or any applicable court or governmental order, provided that, to the extent legally permissible, Buyer first gives prompt notice to and cooperates with the Seller in seeking to protect the confidentiality of such Confidential Information. The obligations set forth in this Section 16 will not apply to any portion of the Confidential Information that Buyer can demonstrate (a) is or becomes generally available to the public through no action or omission by Buyer or any of its representatives or (b) is or becomes available to Buyer on a non-confidential basis from a source, other than the other Seller or its representatives, which is not prohibited from disclosing the Confidential Information by any contractual, legal, or fiduciary obligation. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.
Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Seller expressly reserves the right to subcontract the performance of all or part of this Agreement without the consent of Seller.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and 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.
Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Escalation Clause. If, during the performance of the contract, Seller’s cost of any material or component part necessary to produce the Goods (referred to herein as “Input” or “Inputs”) significantly increases, the price to be paid by Buyer to Seller hereunder shall be equitably adjusted by an amount reasonably necessary to cover any such significant cost increases. As used herein, a significant cost increase shall mean any increase in the cost of any Input exceeding 5% experienced by Seller from the date of this Agreement. Such cost increases shall be documented through quotes, invoices, or receipts. Where the delivery of any Input is delayed, through no fault of the Seller, as a result of the shortage or unavailability of a particular Input, Seller shall not be liable for any additional costs or damages associated with such delay(s).
Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Utah.
Arbitration. Any dispute, controversy, or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the American Arbitration Association. Any such arbitration shall be resolved within one hundred eighty (180) days of filing of the arbitration demand. The parties agree that the exclusive venue for any arbitration or litigation relating to this Agreement shall be in Weber County, Utah. The parties waive any rights to object to venue as set forth herein, including any argument of inconvenience for any reason. The arbitrator’s decision shall be final and non-appealable. The prevailing party shall be entitled to recover its legal and other professional fees and costs incurred in connection with such arbitration proceeding and any necessary court action.
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.
