UNLESS OTHERWISE AGREED IN WRITING, ALL PROPOSALS, SALES, AND WORK PERFORMED BY NORTH AMERICAN REFRIGERATION COMPANY, INC. ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
1. GENERAL. This document (“Seller Terms and Conditions”) shall be deemed an integral part of each proposal (“Proposal”) for the sale of goods (“Goods”) and/or the performance of services (“Services” and collectively with Goods, the “Work”) made by North American Refrigeration Company, Inc. (“North American”) to the customer or person buying such Goods or Services from North American (the “Buyer”). The acceptance of any Proposal or the issuance of any purchase order by Buyer (“Purchase Order”) is expressly limited to and conditioned upon Buyer’s acceptance of and assent to these Terms and Conditions. Terms and conditions submitted by Buyer or found on any form issued by Buyer, including without limitation an acceptance of the Proposal or a Purchase Order form, are hereby contradicted and not recognized and shall not operate to vary any of the terms and conditions set forth herein even if such terms and conditions are not expressly contradicted again upon receipt. Any understandings, agreements, course of dealing or performance, transactions, or usage of trade that purport to modify, vary, explain, supplement or contradict these Terms and Conditions do not come into force unless and until confirmed in writing by North American. These Terms and Conditions along with the Proposal, and any written acceptance of such Proposal, and all documents incorporated by reference herein or therein, constitute the entire agreement (“Agreement”) between North American and Buyer. These Terms and Conditions are deemed to be accepted at the latest upon delivery of Goods. North American reserves the right in its sole discretion to refuse to accept any Purchase Order for any reason. North American and Buyer are sometimes referred to herein as the “Parties” or individually as a “Party”.
2. PROPOSALS. Unless otherwise specified in writing, all Proposals made by North American shall be effective for fourteen (14) days from the time such Proposal is sent to Buyer. Each Proposal shall be considered an offer to provide the Goods and/or Services set forth therein upon the terms and conditions set forth therein.
3. PRICE. All prices included in any Proposal are subject to acceptance by North American at the time acceptance of such Proposal is submitted to North American by Buyer. All prices are net and do not include any taxes (including but not limited to value added taxes, import fees and taxes, and any other city, county, state, or federal taxes where applicable), freight charges, insurance, storage costs, handling, demurrage, or any similar charges, costs, or fees. Prices also do not include the cost of any licensing and permits required for the Work, which such costs shall be passed through to Buyer as a separate line item on the invoice.
4. PAYMENT TERMS. Unless otherwise agreed to in writing, 25% of the purchase price for all Work shall be due and payable at the time of Buyer’s acceptance of a Proposal or at the time of North American’s acceptance of a Purchase Order as applicable. The remaining 75% shall be invoiced on a monthly basis as Work progresses in accordance with the Work performed during such month. All monthly invoices shall be paid net 30 days from the date such invoice is received by Buyer, and all invoices remaining unpaid after 60 days from Buyer’s receipt shall incur interest at the lower of (i) a per annum interest rate of 18%, or (ii) the highest rate allowed by applicable law, until payment has been made in full.
5. SHIPMENT AND RISK OF LOSS. Unless otherwise agreed to by all Parties, all shipments shall be made Ex-Works (EXW) North American’s location in Kansas City, Missouri according to Incoterms 2010.
6. DESIGN, SPECIFICATIONS, AND SCOPE OF WORK. All elements of design, all specifications set forth in the Proposal, and all Work (collectively the “Scope of Work”) shall be performed in accordance with:
8. DELAYS. North American shall not be liable for any damages, costs, or expenses associated with delays in Work or the schedule for the Work that are not caused by North American, and Buyer agrees to pay North American for any and all costs incurred by North American as a result of such delays
10. LIMITED WARRANTY.
12. FORCE MAJEURE. North American shall not be liable for any act, omission, result or consequence, including but not limited to any delay in delivery or performance or non-performance due to acts of God; acts of Buyer; war; weather; sabotage; civil disturbances or riots; the prior performance of any government order; any order bearing priority rating or order placed under any allocation program (mandatory or voluntary) established pursuant to law; local labor shortage; fire; flood or other casualty; acts of the government (including through regulation or other requirements) or public enemy; epidemics, pandemics, or public health emergencies as declared by the World Health Organization or the Department of Health and Human Services of the United States; quarantine restrictions; shortage or failure of raw material, supply, fuel, power or transportation; breakdown of equipment; strikes, labor disputes or differences with workmen, regardless of whether or not North American is capable of settling any such labor problem; unforeseen circumstances or any events beyond North American’s reasonable control whether of similar or dissimilar nature than those above enumerated (each a “Force Majeure Event”). North American has the right to cancel any Proposal or Agreement if North American determines in its sole discretion that it will be unable to perform due to any events beyond its control, including, but not limited to those enumerated above, and North American shall have no liability to Buyer for any costs incurred by Buyer as a result of such cancellation.
13. CONFIDENTIALITY. In the course of the relationship between the Parties, each Party may acquire valuable trade secrets, proprietary data, and other confidential information of the other Party including without limitation, drawings, specifications, data, goods, technical information, information on processes, customer lists, customer identities, and other tangible and intangible property (collectively, the “Confidential Information”). Each Party agrees that throughout the course of its relationship with the other Party and for a period of five (5) years after the most recent order placed by and delivered to Buyer, such Party will not, without the expressed written consent of the other Party, directly or indirectly communicate or divulge to, or use for its own benefit or the benefit of any other person or entity, any of the other Party’s Confidential Information which was communicated to or otherwise learned of or acquired by such Party during the course of its relationship with the other Party. Notwithstanding the foregoing, either Party may disclose or use Confidential Information under any of the following circumstances: (i) disclosure or use thereof in good faith and in connection with the performance of its duties in the course of its relationship with the other Party to the extent required, (ii) disclosure or use of any such information or data which is generally known within the industry or is otherwise available through independent resources, and (iii) disclosure or use thereof pursuant to any regulatory, compliance, or legal requirement in which case the disclosing Party agrees to provide notice of such requirement prior to such disclosure or use in order to give the other Party, in its discretion, the ability to challenge any such disclosure or use with the applicable governmental authority or to otherwise obtain a protective order as to such disclosure or use. Each Party agrees to promptly notify the other Party of any disclosure of Confidential Information that is not permitted under these Terms and Conditions and of any other misuse of Confidential Information in violation of these Terms and Conditions. In addition, Buyer agrees to indemnify and hold harmless North American and its respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, actions, suits, demands, damages, liabilities, obligations, and other losses, including reasonable attorneys’ fees and court costs arising therefrom or related thereto, claimed from or against North American and related to the unauthorized use or disclosure of North American’s Confidential Information including but not limited to dissemination of Confidential Information that occurs due to a third-party data breach of Buyer’s computer, filing, or data retention systems.
14. PROPRIETARY RIGHTS AND INTELLECTUAL PROPERTY. Any software (including Boot ROM code, and embedded software), documentation, and data that is supplied with Goods (“Good Original Software”) as the same may be replaced or updated by North American from time to time (“Good Software Updates”) on any media and in any form (collectively “Good Software”) is licensed and not sold to Buyer by North American for use pursuant only to this Agreement. North American retains ownership of the Good Software and reserves all rights not expressly granted to Buyer. Subject to these Terms and Conditions, Buyer is granted a limited, non-exclusive, non-transferable, non-assignable, and revocable license to use the Good Software provided with a Good purchased pursuant to this Agreement. Buyer will not reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, techniques, processes, algorithms, know-how or other information from the Good Software (collectively, "Reverse Engineering") or permit or induce the foregoing. Any information supplied to or obtained by Buyer under this section is Confidential Information of North American subject to the obligations of Section 11, may only be used by Buyer for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the Good Software. Buyer may not rent, lease, lend, sell, redistribute, or sublicense the Good Software. The license to use the Good Software is effective until terminated by North American or until such time as the Buyer has disposed or transferred ownership of the Good using such Good Software. This license does not grant Buyer any right to use any other North American intellectual property. Unless expressly stated in these Terms and Conditions, North American retains all rights in its intellectual property (including copyright, trademarks, patents, design rights, know-how, processes, procedures, technical information, data, and formulae) associated with the Goods. Buyer agrees not to infringe, directly or indirectly, any intellectual property of North American, and agrees to not reverse engineer Goods in any way.
15. LIMITATION OF REMEDY AND LIABILITY. NORTH AMERICAN SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE AND THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE. IN NO EVENT, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE), SHALL NORTH AMERICAN’S LIABILITY TO BUYER EXTEND BEYOND OR EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC WORK OR GOODS PROVIDED BY NORTH AMERICAN GIVING RISE TO THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT IN NO EVENT SHALL NORTH AMERICAN’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. The term “consequential damages” shall include, but not be limited to: liquidated damages paid or payable to any third party pursuant to a contract or agreement between Buyer and such third party; loss of anticipated profits; business interruption; loss of use, revenue, reputation and data; costs incurred, including without limitation, for capital, labor, fuel, or power; and loss or damage to property or equipment. Buyer expressly acknowledges and agrees that North American has set its prices and entered into the Agreement in reliance upon the limitations of liability and other terms and conditions specified herein, which allocates the risk between North American and Buyer and forms a basis of this bargain between the Parties.
16. WAIVER. Failure or inability of either Party to enforce any right hereunder shall not waive any such right with respect to future performance under the Agreement.
17. EXPORT. Buyer agrees that all applicable export control laws, regulations, orders and requirements, including without limitation those of the jurisdiction in which North American and Buyer are established or from which Good may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, or export Goods in violation of applicable laws, regulations, orders or requirements. In connection with the transactions contemplated by the Agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of North American’s jurisdiction and of any applicable state, foreign and local governmental body in connection with the purchase, receipt, use, transfer and disposal of Goods. If Buyer exports a Good in violation of any applicable law, regulation or rule, Buyer shall be solely responsible for any fines or penalties imposed by competent authorities and shall indemnify and hold North American harmless from any fines, penalties, and costs (including legal fees) incurred by North American in connection with Buyer’s violation.
18. GENERAL PROVISIONS. The Agreement supersedes all other communications, negotiations and prior oral or written statements regarding the subject matter of the Agreement. All typographical or clerical errors made by North American in any Proposal or publication are subject to correction.
19. APPLICABLE LAW; VENUE. Interpretation of these Terms and Conditions and all transactions between the Parties shall be governed by and interpreted in accordance with the laws of the state of Missouri (without regard to conflict of laws provisions). Buyer irrevocably consents and agrees that proceedings against Buyer may be brought in the courts of the State of Missouri in Jackson County, or the District Courts of the United States for the U.S. Judicial District in which said Jackson County is included. The U.N. Convention on Contracts for the International Sales of Goods shall not apply to the Agreement.
20. NOTICE. All notices, claims, requests and other communications hereunder which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given and received on the date sent if hand-delivered, or sent by delivery service, or facsimile transmission to the address set forth on the applicable Proposal or Purchase Order. Notices, claims, requests, and other communications delivered by mail shall be deemed to have been received three (3) business days after deposit in the US mail, postage prepaid.
21. ASSIGNMENT. Neither the Agreement nor any of the rights, interest or obligations hereunder shall be assigned by either Party without the prior written consent of the other Party which consent shall not be unreasonably withheld provided, however, that a Party may (i) assign the Agreement to any entity that acquires all or substantially all of such Party’s assets or its business that is the subject hereof, or (ii) upon written notice to the other Party, assign the Agreement to any entity that is owned by such Party. However, nothing herein shall prohibit North American from assigning any rights it has under any contracts with any manufacturer.
22. TOOLS AND MATERIALS. North American shall retain title to any designs, sketches, drawings, blueprints, patterns, dies, models, molds, tools, special appliances and materials (“Articles”) furnished or paid for by North American in connection with any Proposal or Purchase Order. Articles shall be marked as property of North American, shall be properly insured (with loss payable to North American) and shall be replaced if lost or destroyed.
23. COMPLIANCE WITH LAWS. In connection with each Proposal or Purchase Order, Buyer shall comply with all applicable foreign, federal, state, and local laws, executive orders, rules and regulations, including but not limited to the Occupational Safety and Health Act of 1970 as amended (“OSHA”), Toxic Substances Control Act as amended (“TOSCA”), Equal Employment Opportunity Act and the Regulations and Standards issued pursuant thereto, and the Fair Labor Standards Act of 1938 as amended (“FLSA”).
24. HEADINGS. The paragraph headings and numbers are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer.
25. INTERPRETATION. Where the context of the Agreement so requires, the singular shall include the plural and vice-versa.
26. SEVERABILITY. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provisions in any other jurisdiction.
27. DISPUTE RESOLUTION. Any dispute between the parties related to this Agreement, these Terms and Conditions, any Proposal, or any Work performed by North American hereunder shall first require the principals or authorized executives of each Party to use good faith efforts to negotiate a resolution. In the instance that the principals or authorized executives of the Parties are unable to reach a resolution, such matter shall be submitted to binding arbitration in accordance with rules and procedures set forth by the American Arbitration Association, with such arbitration to be held in Kansas City, Missouri. Any award or resolution rendered through such arbitration shall be final and judgment may be entered in accordance with applicable law in any court having jurisdiction thereof.
28. ORDER OR PRECEDENCE. In the event of any conflict between the Agreement and any other terms and conditions of any other document, the Agreement shall govern. In the event of conflict between the Proposal and these Terms and Conditions, the Proposal shall govern.
29. NOTICE TO OWNER. FAILURE OF THIS CONTRACTOR TO PAY THOSE PERSONS SUPPLYING MATERIAL OR SERVICES TO COMPLETE THIS CONTRACT CAN RESULT IN THE FILING OF A MECHANIC’S LIEN ON THE PROPERTY WHICH IS THE SUBJECT OF THIS CONTRACT PURSUANT APPLICABLE LAW. TO AVOID THIS RESULT YOU MAY ASK THIS CONTRACTOR FOR “LIEN WAIVERS” FROM ALL PERSONS SUPPLYING MATERIAL OR SERVICES FOR THE WORK DESCRIBED IN THIS CONTRACT. FAILURE TO SECURE LIEN WAIVERS MAY RESULT IN YOUR PAYING FOR LABOR AND MATERIAL TWICE.
30. SPECIFICATIONS, EXCLUSIONS & CLARIFICATIONS. The following items are general specifications, exclusions and clarifications that are applicable to all proposals unless otherwise stated in the proposal.
General Exclusions from price and Scope of Work:
Steel & Structural Exclusions from price and Scope of Work:
Electrical & PLC Exclusions from price and Scope of Work:
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