Updated: October 28, 2024

C & B Material Handling Engineered Solutions
Work Proposal Terms and Conditions

Applicability.  These terms and conditions (these “Terms“) are the only terms that govern the provision of engineered solutions services by C & B Material Handling, LLC, with its principal place of business at 150 East 4th Place, #900, Sioux Falls, SD 57104 (“Service Provider“) to the person or entity named on the Order Confirmation (“Customer“). The accompanying quote/proposal/order confirmation (the “Order Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the Provider and Customer, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions (“Terms“) supersede and prevail over any of Customer’s terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. The provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Service Provider shall provide the services to Customer as described in the Order Confirmation (the “Services“) in accordance with these Terms.

Performance Dates & Customer Obligations. Service Provider shall use commercially reasonable efforts to meet any performance dates specified in the Order Confirmation; provided, however, that any such dates shall be estimates only.

Customer’s Obligations. Customer shall: (i) cooperate with Service Provider in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider, for the purposes of performing the Services; (ii) respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the  Services in accordance with the requirements of this Agreement; (iii) provide such Customer materials or information as Service Provider may reasonably request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (vi) 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.

Customer’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Change Orders. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request, provide a written estimate to Customer of the likely time required to implement the change; any necessary variations to the fees and other charges for the Services arising from the change; the likely effect of the change on the Services; and any other material impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order“). Neither party shall be bound by any Change Order unless mutually agreed upon in writing.

Fees and Expenses; Payment Terms; Interest on Late Payments.  In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Confirmation. The Service Provider reserves the right to increase the fees due hereunder if it deems it commercially reasonable to do so due to unforeseen complications which restrict Service Provider’s ability to perform the Services. Customer agrees to reimburse Service Provider for the costs for all Goods incurred by Service Provider and all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services. Customer shall pay all invoiced amounts due to Service Provider on receipt of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by wire transfer, check, or credit card. In the event payments are not received by Service Provider within 30 days after becoming due, Service Provider may: charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and suspend performance for all Services until payment has been made in full. Service Provider shall always have access to all rights and remedies under applicable lien laws.

Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

Goods. In performance of the Services, Service Provider may need to procure whole goods or parts and raw materials (“Goods”) on Customer’s behalf. If Goods are provided by Service Provider, Service Provider shall deliver the Goods to Customer at the location listed on the Order Confirmation (the “Delivery Point”). Title and risk of loss shall pass to Buyer upon delivery of the Goods at the Delivery Point. In no event shall the Service Provider be liable for any delays in the delivery of Goods. Service Provider assumes no responsibility and shall have no liability for any Goods shipped directly from the manufacturer to Customer. ANY WARRANTIES ON ANY GOODS USED IN THE PROVISION OF SERVICES ARE LIMITED ONLY TO THOSE WRITTEN WARRANTIES PROVIDED BY THE APPLICABLE GOOD’S MANUFACTURER.

Representation and Services Warranty. Service Provider represents and warrants to Customer that it shall perform the Services in compliance with all applicable laws in a professional and workmanlike manner and shall devote adequate resources to meet its obligations under this Agreement. The Service Provider shall not be liable for a breach of the warranty set forth herein unless the Customer gives written notice of the defective Services, reasonably described, to the Service Provider within 30 days of project completion. Service Provider shall, in its sole discretion, either: re-perform such Services, as applicable to cure; or credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH HEREIN SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE SERVICES WARRANTY SET FORTH HEREIN.

Disclaimer of Warranties & Limitation of Liability. EXCEPT FOR THE SERVICES WARRANTY SET FORTH ABOVE, SERVICE PROVIDER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES OR GOODS, INCLUDING BUT NOT LIMITED TO ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, 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 SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER’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 AGGREGATE AMOUNT PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.

Termination. In addition to any remedies that may be provided under this Agreement, Service Provider may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, 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. Customer may not terminate this Agreement without the consent of Service Provider.

Insurance. During the term of this Agreement, Service Provider and Customer shall, at their own expense, maintain and carry in full force and effect commercial general liability insurance in a sum no less than $1,000,000 with financially sound and reputable insurers.

Miscellaneous. SERVICE PROVIDER IS NOT A FEDERAL GOVERNMENT CONTRACTOR OR SUBCONTRACTOR. SERVICE PROVIDER CANNOT ACCEPT OR AGREE TO ANY TERMS OR CONDITIONS THAT WOULD IMPOSE SUCH STATUS ON IT.  ACCORDINGLY, THE PARTIES AGREE AND REPRESENT THAT THE SERVICES AND/OR GOODS SERVICE PROVIDER WILL PROVIDE HEREUNDER ARE NOT, IN WHOLE OR IN PART, FOR USE IN, OR NECESSARY TO, THE PERFORMANCE OF A FEDERAL GOVERNMENT CONTRACT OR SUBCONTRACT. Service Provider may freely subcontract the performance of any of its duties or obligations under this Agreement to any person or entity it deems qualified. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Customer of any of its obligations under this Agreement. 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. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of South Dakota without giving effect to any choice or conflict of law provision or rule (whether of the State of South Dakota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of South Dakota. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of South Dakota in each case located in the City of Sioux Falls, County of Minnehaha, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth in the Order Confirmation or to such other address that may be designated by the receiving party in writing. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, 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. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.