Boiler Technologies Unlimited
Boiler Technologies Unlimited, LLC, a Florida limited liability company (the “Company”), a manufacturer’s representative, agrees to sell the Equipment, and, where applicable, to perform Installation Services, upon the following terms and conditions of sale, which, accordingly, supersede any of Buyer’s additional or inconsistent terms and conditions of purchase.
a. All orders are subject to the approval of the Company’s home office. Unless otherwise stated, standard terms of payment are thirty (30) days net from the earlier of the date of shipment or readiness of the Equipment for shipment. If partial shipments are made, payment shall become due and payable for the partial shipment.
b. In addition to the purchase price, Buyer shall pay all excise, sales, privilege, use, or other taxes — local, state, or federal — which the Company may be required to pay arising from the sale or delivery of the Equipment or the use thereof. Prepaid freight, if applicable, will be added to the purchase price separately.
c. Contract prices are subject to adjustment to the Company’s prices in effect at time of shipment unless otherwise specified in a separate Price Adjustment Policy attached to the proposal or other contract document of the Company.
d. If Buyer requests changes in the Equipment or delays the manufacture or shipment of the Equipment, the contract price shall be adjusted to reflect increases in cost caused thereby.
e. All invoices are due in full thirty (30) days from the date of invoice. A late charge of one and one-half percent (1.5%) per month (18.0% per annum) shall be added to any balance outstanding after the due date. In the event of a past-due account, Buyer shall be responsible for the Company’s costs of collection, including, but not limited to, attorneys’ fees, court costs, and service of process costs.
a. Shipment is F.O.B. place of manufacture.
a. The Company will endeavor to make shipment of orders as scheduled. However, all shipment dates are approximate only, and the Company reserves the right to readjust shipment schedules.
b. Under no circumstances will the Company be responsible or incur any liability for costs or damages of any nature (whether general, consequential, as a penalty or liquidated damages, or otherwise) arising out of or owing to (i) any delays in delivery or (ii) failure to make delivery at agreed or specified times due to circumstances beyond its reasonable control.
c. If shipment is delayed or suspended by Buyer, Buyer shall pay (i) the Company’s invoice for the Equipment as per payment terms, (ii) the Company’s handling and storage charges then in effect, and (iii) demurrage charges if loaded on rail cars.
a. Warranty:
The Company warrants that at the time of shipment the Equipment manufactured by it shall be merchantable, free from defects in material and workmanship, and shall possess the characteristics represented in writing by the Company. The Company’s warranty is conditioned upon the Equipment being properly installed, maintained, and operated within the Equipment’s capacity under normal load conditions with competent, supervised operators and, if the Equipment uses water, with proper water conditioning.
b. Exclusions from Warranty:
i. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, ORAL, EXPRESS, OR IMPLIED, INCLUDING ANY WARRANTIES THAT EXTEND BEYOND THE DESCRIPTION OF THE EQUIPMENT. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED IN THIS PARAGRAPH 4, AND THERE ARE NO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
ii. The Company’s warranty is solely as stated in (a) above and does not apply or extend, for example, to expendable items; ordinary wear and tear; altered units; units repaired by persons not expressly approved by the Company; materials not of the Company’s manufacture; or damage caused by accident, the elements, abuse, misuse, temporary heat, overloading, or by erosive or corrosive substances or by the presence of oil, grease, scale, deposits, or other contaminants in the Equipment.
c. Warranty Adjustment:
Buyer must make claim of any breach of warranty by written notice to the Company’s home office within thirty (30) days of discovery of any defect. The Company agrees, at its option, to repair or replace any part or parts of the Equipment which, within twelve (12) months from the date of initial operation but no more than eighteen (18) months from the date of shipment, shall prove to the Company’s satisfaction (including return to the Company’s plant, transportation prepaid, for inspection, if required) to be defective within the above warranty. Any warranty adjustment made by the Company shall not extend the initial warranty period set forth above; the warranty period for replacements terminates upon expiration of the initial warranty period.
iii. Removal and Reinstallation. If the Company did not perform the original installation of the Equipment, the Company’s repair or replacement obligation under this Section 4(c) is F.O.B. the Company’s plant, and Buyer is responsible for all expenses of removing, shipping, and reinstalling the Equipment or any part, which will not be reimbursed by the Company. If the Company performed the original Installation Services for the Equipment under Section 11 below, the Company’s repair or replacement obligation includes reasonable labor to remove and reinstall the affected part at the original installation site, subject otherwise to this Section 4.
d. Spare and Replacement Parts Warranty Adjustment:
The Company sells spare and replacement parts. This subparagraph (d) is the Warranty Adjustment for such parts. Buyer must make claim of any breach of warranty for such parts by written notice to the Company’s home office within thirty (30) days of discovery of any alleged defect. The Company agrees, at its option, to repair or replace, F.O.B. the Company’s plant, any part manufactured by it which, within one (1) year from the date of shipment, shall prove to the Company’s satisfaction (including return to the Company’s plant, transportation prepaid, for inspection, if required) to be defective within this Parts Warranty. The warranty for spare and replacement parts not manufactured by the Company (purchased from third-party suppliers) is limited to the warranty extended to the Company by the original manufacturer of such part, and in no event shall create a more extensive warranty obligation than the Company’s own Warranty Adjustment for parts it manufactures. Expenses incurred by Buyer in replacing, repairing, or returning spare or replacement parts will not be reimbursed by the Company.
e. Limitation of Liability:
The above Warranty Adjustment sets forth Buyer’s exclusive remedy and the extent of the Company’s liability for breach of warranties, representations, instructions, or defects from any cause in connection with the sale or use of the Equipment or the performance of any Installation Services. The Company shall not be liable for any special, indirect, incidental, or consequential damages, or for loss, damage, or expense, directly or indirectly arising from the use of the Equipment, the performance of Installation Services, or from any other cause, whether based on warranty, tort, or contract. In no event shall the Company’s aggregate liability arising out of or relating to this Agreement exceed the total amount actually paid to the Company under the applicable Purchase Order.
a. Patent Indemnity and Conditions:
The Company agrees, at its own expense, to defend and hold Buyer harmless in the event of any suit instituted against Buyer for alleged infringement of any United States patent claim covering solely the structure of the Equipment as originally manufactured by the Company per the Company’s specifications, and without modification by Buyer, provided Buyer (i) gives the Company immediate written notice of any such claim, institution, or threat of suit, and (ii) permits the Company to defend or settle the same and gives all needed information, assistance, and authority to enable the Company to do so. Buyer shall defend and indemnify the Company against all expenses, costs, and loss by reason of any real or alleged infringement arising from the Company’s incorporating a design or modification requested by Buyer.
b. Limitation of Liability:
The Company’s total liability under this Section 5 is expressly limited to an amount no greater than the sales price of the Equipment and may be satisfied by the Company refunding to Buyer, at the Company’s option, the sales price for the Equipment. If the Company elects to defend such a suit and the Equipment is held to infringe a United States patent and Buyer’s use is enjoined, the Company shall, at its expense and option, (i) obtain for Buyer the right to continue using the Equipment, (ii) supply non-infringing equipment for installation by Buyer, (iii) modify the Equipment so that it becomes non-infringing, or (iv) refund the then-market value of the Equipment.
a. If damage to the Equipment or other property, or injury to persons, is caused by use or operation of the Equipment prior to being placed in initial operation (“start-up”) by the Company, where start-up is included in the purchase price, Buyer shall indemnify and hold the Company harmless from all liability, costs, and expenses for such damage or injury.
a. The Company may, but is not obligated to, incorporate in the Equipment such changes in specifications, design, material, construction, arrangement, or components as the Company, in its judgment, believes will not materially affect the Equipment’s performance.
a. To secure payment of the purchase price, Buyer agrees that the Company shall retain a security interest in the Equipment, pursuant to Chapter 679, Florida Statutes (Florida Uniform Commercial Code — Secured Transactions), until Buyer has paid the full purchase price in cash when due, together with interest at the highest lawful contract rate until so paid and the costs of collection, including reasonable attorneys’ fees. The Equipment shall at all times be considered and remain personal property, and Buyer shall perform all acts necessary to assure and perfect the Company’s security interest against the rights of third persons. If Buyer defaults in payment of any part of the purchase price when due, or fails to comply with any provision of this Agreement, the Company shall have the remedies available under the Florida Uniform Commercial Code.
b. So long as the purchase price is unpaid, Buyer, at its cost, shall obtain insurance against loss or damage from all external causes, naming the Company as an insured, in an amount and form sufficient to protect the Company’s interest in the Equipment.
a. Buyer may not cancel orders placed with the Company except with the Company’s express written consent and upon terms and payment indemnifying the Company against loss, including but not limited to expenses incurred and commitments made by the Company.
a. The Company shall not be liable for loss, damage, or delay resulting from causes beyond its reasonable control, including strikes or labor difficulties, acts or omissions of any governmental authority or of Buyer, insurrection or riot, fires, floods, breakdown of essential machinery, accidents, priorities or embargoes, car shortages, delays in transportation, or inability to obtain labor, materials, or parts from usual sources. In the event of any such delay, performance will be postponed for such length of time as may be reasonably necessary to compensate for the delay.
a. Equipment-Only Sales. Unless the Company’s Estimate, Purchase Order, or other written agreement with Buyer expressly states that the Company will perform installation, startup, or related on-site labor (collectively, “Installation Services”), the Company is only a supplier of the Equipment and has no responsibility for labor or work of any nature relating to the installation, operation, or use of the Equipment — all of which shall be performed by Buyer or others. It is Buyer’s responsibility to furnish such accessory devices as it desires and/or as required by OSHA standards respecting Buyer’s use of the Equipment.
b. Installation Services. If the Company’s Estimate, Purchase Order, or other written agreement expressly provides that the Company will perform Installation Services, the following additional terms apply to those services:
i. The Company shall perform Installation Services as an independent contractor, in a good and workmanlike manner, and in material compliance with applicable federal, state, and local laws, codes, and permitting requirements.
ii. The Company shall maintain commercial general liability, automobile liability, workers’ compensation, and employer’s liability insurance in the amounts reflected on its then-current certificate(s) of insurance and shall, upon reasonable request, name Buyer as an additional insured on a primary, non-contributory basis with respect to claims arising from the Installation Services, with a waiver of subrogation in Buyer’s favor.
iii. The Company shall indemnify, defend, and hold harmless Buyer from third-party claims for bodily injury, death, or property damage to the extent caused by the negligence, recklessness, or willful misconduct of the Company or its employees, agents, or subcontractors in performing the Installation Services. Consistent with Section 725.06, Florida Statutes, this indemnification obligation (A) shall not exceed $1,000,000 (one million dollars), an amount bearing a reasonable commercial relationship to the Installation Services, (B) shall not extend to claims arising from Buyer’s own negligence, willful misconduct, or statutory violations, and (C) shall not require the Company to indemnify Buyer for Buyer’s own acts, omissions, or defaults.
iv. The Company reserves all rights and remedies available under the Florida Construction Lien Law, Chapter 713, Florida Statutes, including the right to record a claim of lien and, where applicable, to serve a Notice to Owner or Notice to Contractor to preserve such rights. Buyer shall, upon request, promptly provide the Company with a copy of the recorded Notice of Commencement, the legal description of the property, and any other information reasonably necessary for the Company to preserve its lien rights.
v. License and Permitting Basis. The Company represents that Installation Services, as typically scoped by the Company, do not require the Company to hold a Florida contractor license or to pull a building permit in the Company’s own name. Where a project requires work that is subject to Florida contractor licensing or permitting requirements (for example, gas, plumbing, or electrical connections), that portion of the work will be performed by a licensed Subcontractor engaged under Section 11(c) below, and any required permits for that portion will be pulled by, or in the name of, the licensed Subcontractor or another appropriately licensed party.
c. Subcontracted Work. The Company may engage licensed subcontractors, installers, or equipment manufacturers (each, a “Subcontractor”) to perform portions of the Work on a project, including projects involving more than one Subcontractor. The following terms apply to Subcontracted Work:
i. Independent Contractor Status. Each Subcontractor is an independent contractor and, where required for its scope of work, is separately licensed under Chapter 489, Florida Statutes, or other applicable law. Each Subcontractor — not the Company — is solely responsible for its own licensing, permitting, means and methods, workmanship, and compliance with applicable federal, state, and local laws, codes, and regulations.
ii. Limitation of Company’s Responsibility. The Company’s responsibility with respect to Subcontracted Work is limited to engaging a Subcontractor that the Company reasonably and in good faith believes holds licenses and qualifications appropriate to its scope, and to coordinating that scope with the Company’s own Work. EXCEPT TO THE EXTENT CAUSED BY THE COMPANY’S OWN NEGLIGENCE IN SELECTING A SUBCONTRACTOR, THE COMPANY IS NOT RESPONSIBLE FOR, AND DOES NOT WARRANT, THE WORK, KNOWLEDGE, LICENSING COMPLIANCE, PERMITTING, OR PERFORMANCE OF ANY SUBCONTRACTOR.
iii. Pass-Through of Subcontractor Warranties. To the extent permitted by law and by the applicable subcontract, the Company will pass through to Buyer any warranty, indemnity, or manufacturer’s warranty the Company receives from a Subcontractor relating to Subcontracted Work. Buyer’s remedy for defective Subcontracted Work is, at the Company’s option, limited to the Company’s assignment or enforcement of those pass-through rights on Buyer’s behalf.
a. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, including the Florida Uniform Commercial Code, without regard to conflict-of-laws principles.
b. Any action arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Manatee County, Florida, and each Party consents to the personal jurisdiction of such courts and waives any objection based on forum non conveniens or improper venue.
c. In any action to enforce or interpret this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party, in addition to any other relief to which it may be entitled.
a. This Agreement, together with the Company’s Estimate and any Purchase Order accepted by the Company, constitutes the complete agreement between the Company and Buyer, and no additional or different terms or conditions stated by Buyer shall be binding unless agreed to by the Company in writing. No course of prior dealing and no usage of trade shall be relevant to supplement or explain any term used in this Agreement. This Agreement may be modified only by a writing signed by both the Company and Buyer. The Company’s failure to insist upon strict performance of any term or condition stated herein shall not be considered a continuing waiver of that term or condition or of any of the Company’s rights.
b. Electronic Signatures; Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original. In accordance with Florida’s Uniform Electronic Transaction Act (Chapter 668, Part II, Florida Statutes), electronic signatures and electronically transmitted signatures, facsimiles, and photocopies shall be valid, binding, and admissible to the same extent as original signatures.
If any provision of this Agreement is held invalid, illegal, or unenforceable in any respect, that provision shall be modified to the minimum extent necessary to make it valid and enforceable, and the remaining provisions shall continue in full force and effect. If such modification is not possible, the invalid, illegal, or unenforceable provision shall be severed, and such determination shall not affect the validity or enforceability of the remaining provisions.
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