service maintenance Terms and conitions

C & B MATERIAL HANDLING, LLC SERVICE AND MAINTENANCE TERMS AND CONDITIONS

 

Applicability.  These terms and conditions (these “Terms“) are the only terms that govern the provision of Services by C & B Material Handling, LLC, a South Dakota limited liability company (“Service Provider“) to the party or person named on the associated Invoice (“Customer“). That invoice (the “Invoice“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between Service Provider and Customer, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms supersede and prevail over any of Customer’s general 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.

Services.  Service Provider shall provide the repair and/or maintenance services to Customer as described in the Invoice (the “Services“) in accordance with these Terms.

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 Invoice. Customer shall pay all invoiced amounts due to Service Provider no later than 30 days following receipt of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by wire transfer, check, or credit card. Customer 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. Customer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

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.

Limited Warranty.  Service Provider represents and warrants to Customer that it shall perform the Services using personnel of suitable skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. The Service Provider shall not be liable for a breach of the limited warranty set forth herein unless Customer gives written notice of the defective Services, reasonably described, to Service Provider no later than 30 days from the date that Customer discovers or ought to have discovered that the Services were defective. Service Provider shall, in its sole discretion, either: repair or re-perform such Services (or replace the defective part); or credit or refund the applicable price of such defective 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 LIMITED WARRANTY SET FORTH IN THIS SECTION.

Disclaimer of all Other Warranties.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, SERVICE PROVIDER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING 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. Any warranties on any new and/or used parts, components, accessories, or materials used in the provision of Services (“Parts”) are limited only to those written warranties provided by the applicable Part’s manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.

Limitation of Liability.  IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THIS AGREEMENT.

MiscellaneousSERVICE 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 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. 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. 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 and Minnehaha County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Further, in the event that any provision in this Agreement is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended. 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. 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. 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.