US Dollars
Spartan tool, l.l.c. TERMS & CONDITIONS OF SALE
1. Contract
These terms and conditions of Spartan Tool, L.L.C. (“Seller”) are incorporated into the accompanying Order Acknowledgement or Invoice and govern all sales contracts of Seller. “Buyer” when used herein means the person or entity purchasing or receiving goods and/or services from Seller. Seller objects to and is not bound by any term or condition in Buyer’s order. Buyer’s acceptance is limited to the exact terms and conditions set forth herein, and any additional or different terms or conditions proposed by Buyer are hereby expressly rejected. “Products” when used herein means the equipment or products sold by Seller to Buyer under an order.
2. F.O.B POINT
Delivery of Products will be made F.O.B. point of shipment unless this is a delivered price transaction in which event the same is based upon freight rates in effect at the date of the acceptance, and unless otherwise stated, any increase in freight rates at the time of shipment shall be added to the prices quoted herein. All Products shall be delivered F.O.B. point of shipment, and Seller’s responsibility therefore shall cease upon delivery to the carrier.
3. TAXES
Any Federal, State, Municipal or County Tax which may be levied upon sale, use production or transportation of the Products, or any increase in cost resulting from the operation of any Federal, State or Municipal regulation or legislation shall be borne by the Buyer.
4. SPECIFICATIONS
Seller shall be responsible only for the manufacture of the Products in accordance with its standard specifications and practices. Seller shall not be responsible for any deviation from the standard specifications as a result of local labor or inspection requirements at destination, nor shall it be responsible for rebuilding or reassembling any equipment or parts thereof due to local requirements, rules or regulations or for inspection charges or other fees in connection therewith.
5. INSPECTION
No Product shall be shipped subject to inspection or approval of Buyer at destination, unless otherwise specifically provided for in the order.
6. DELAYS
Seller agrees to use commercially reasonable efforts to complete and deliver the equipment and products described herein on or before the delivery date, but Seller shall not be liable for any damages for delays caused by conditions beyond its control, such as strikes, fires, floods, accidents, shortage of cars, interruption or delays in transportation embargoes, shortage of critical materials or of manpower, labor disputes, governmental regulations, restrictions, allocations, or directives, or any other events or delays unforeseen or beyond Seller’s reasonable control.
7. CANCELLATION
This order may not be cancelled without the written consent of the Seller. If the order is cancelled, the Seller in its sole discretion may render an invoice for termination charges in an amount deemed appropriate by the Seller.
8. VOIDING OF ORDER BY SELLER
At its option, Seller may consider an order void if ninety (90) days has elapsed and an order tendered by the Buyer has no definite shipping instructions, or after an order is placed, Buyer requests shipment to be withheld or delayed without giving a definite revised shipping date.
9. STORAGE
In the event delay occurs in the acceptance of the Products by Buyer, or in the event Buyer requests that shipment be postponed or delayed, the amounts payable under this order shall become due and payable when the Products are ready for shipment. If it becomes necessary or advisable for the Seller to provide storage for said equipment or products because of Buyer’s fault or Buyer’s request for delay or postponement of shipment, then the cost of such storage and handling costs in connection therewith shall be added to and become a part of the purchase price thereof.
10. DEFAULT IN PAYMENTS
In the event Buyer fails to pay promptly for Products or defaults in any payment due Seller for any Products, or if in Seller’s judgment, the credit of Buyer shall become impaired, whenever such impairment shall become apparent to Seller even before default by Buyer, Seller reserves the right at its option to suspend delivery hereunder and to warehouse the material, merchandise or equipment until all payments which are due are made. Buyer agrees to pay Seller all such costs and expenses, including attorney’s fees and occur costs in connection therewith or in connection with the collection of any moneys which may become due hereunder, together with interest at eighteen percent (18%) per annum on all moneys past due.
11. PARTIAL BILLINGS
Seller has the right to invoice Buyer as Products are shipped and terms of payment on the face of this acceptance shall apply to each such invoice.
12. TITLE TO REMAIN IN SELLER/GPS TRACKING
The entire right, title and interest in and to any Products sold to Buyer hereunder shall remain in Seller until the purchase price has been paid in full. In the event Buyer defaults in any payment provided hereunder, Seller has the right to enter Buyer’s premises without legal notice and repossess any portion or all of the Products sold hereunder, and no liability shall attach by reason of such entry and repossession. Such right shall be in addition to any other legal right seller may have hereunder or by virtue hereof, including Seller’s right to enforce Buyer’s obligation to pay the full amount of the purchase price hereunder. During the period that the purchase price for the Products has not been paid in full to Seller, Seller shall have the right to utilize GPS tracking to identify the location of the Products.
13. WARRANTY FOR SPARTAN TOOL PRODUCTS
Seller warrants Products (excluding LightRay Products covered separately below) to be free from defects in materials and workmanship for one year from the date of purchase. To obtain warranty service, Buyer must notify Seller in writing, at the address provided below, within the warranty period, and Seller will direct where to take or send the equipment for service. If the defect is covered by the warranty, Seller will repair or replace, at its option, the defective equipment or parts, without charge for labor or materials.
The warranty is limited to the original retail purchaser and is not transferable. Seller assumes no responsibility for damage due to accident, neglect, abuse, tampering or misuse, nor damage from repairs or alterations by others. This warranty does not cover damage to the Products resulting from use of replacement parts other than Spartan Tool parts.
Seller’s sole obligation and the original retail purchaser’s exclusive remedy under this warranty shall be for repair or replacement as described above. ALL OTHER WARRANTIES ARE DISCLAIMED, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE..
A Returned Goods Authorization (RGA) must be obtained from Seller prior to returning any item for warranty consideration. Packages received without an RGA number appearing clearly on the outside of the box will be rejected.
14. WARRANTY FOR LIGHTRAY PRODUCTS
(a) Applicability. LightRay branded products (together with LightRay LR3 equipment and related spare parts and consumable products, “LightRay Products”) are not manufactured by Seller and are not covered by the warranties in Section 13 (“Warranty for Spartan Tool Products”). Seller makes no representations or warranties with respect to LightRay Products, except as contemplated by this Section 14. However, Seller hereby passes through the warranties that the manufacturer of LightRay Products, Waterline Renewal Technologies, Inc. (“WRT”) except as contemplated by Section 14(d), provides Seller and authorizes Seller to pass-through to Buyer. WRT’s warranty for Light Ray Products is set forth in this Section, and this Section applies solely to LightRay Products.
(b) CIPP Warranty. Subject to Section 14(e), WRT warrants, for a period of five years from the date of delivery to Seller, that all cured-in-place pipe LightRay Products which are consumable materials (the “CIPP Products”) will be (a) if installed within 180 days of manufacture, free from material defects in material and workmanship, and (b) manufactured to the requirements of ASTMF1216 (Standard Practice for Rehabilitation of Existing Pipelines and Conduits by the Inversion and Curing of a Resin-Impregnated Tube) in effect as of the date of this order.
(c) Non-CIPP Warranty. Subject to Section 14(e), WRT warrants, for a period of one year from the date of delivery to Seller, that the Products other than the CIPP Products (including, without limitation, installation equipment and accessories) will be free from material defects in material and workmanship. For purposes of clarity, a LightRay Product other than CIPP Products which is manufactured or compiled by WRT but which includes a component manufactured by a third-party are LightRay Products within the scope of the warranty of this Section 14(c).
(d) Third-Party Products. LightRay Products not manufactured by WRT (each a “Third-Party Product”) are not covered by the warranties in this Section. WRT makes no representations or warranties with respect to any Third-Party Products. However, WRT passes through to Seller, and Seller hereby passes through to Buyer, any warranties that the manufacturer of any such Third-Party Product provides WRT and authorizes WRT to pass-through, indirectly, to Buyer. In the event WRT is an authorized warranty provider, WRT may assist Buyer with respect to the administration of the warranty with respect to Third-Party Products.
(e) Warranty Limitations. The warranties set forth in this Section do not apply to (i) any non-conformity to the warranties in this Section 14 (each a “Defect” or, as a descriptor for a LightRay Product, “Defective”) that could have been detected by an inspection by Buyer, (ii) any Defect due to a force majeure event, misuse, accident, abuse, neglect, damage, normal wear and tear, corrosion, abrasion, use of unsuitable lubricants, negligence (other than WRT’s), modification or alteration not performed by WRT, use of replacement parts other than WRT parts, improper installation, improper type of pipe for installation, improper repair, improper handling, improper application, improper operation or use, improper or insufficient maintenance, storage outside of the recommended temperature range, WRT’s reliance on the drawings, specifications, samples, descriptions and/or other requirements provided by Seller or Buyer or on Seller’s or Buyer’s behalf, or any other cause not the fault of WRT, or (iii) with respect to CIPP Products, any CIPP Products (A) installed in gravity fed pipes deeper than the depth approved by a certified engineer licensed to make such determinations (or deeper than the depth approved in advance by WRT), (B) installed in pipes that do not consist of normal, standard sanitary sewer flows, or (C) not installed or operating in accordance with the techniques mandated by WRT and, when not in conflict, consistent with industry practice.
(f) Exclusive Remedy. During the applicable warranty period, with respect to any Defective LightRay Products, Buyer shall notify WRT, in writing, of any alleged Defect within five days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged Defect (in any event before the expiration of the applicable warranty period), and ship, at Buyer’s sole expense and risk of loss, such allegedly Defective LightRay Products to the facility designated by WRT for inspection and testing by WRT. If WRT’s inspection and testing reveals, to WRT’s reasonable satisfaction, that the LightRay Products are Defective, and any such Defect has not been caused by or subject to any of the factors described under Section 14(e), WRT shall, in its sole discretion, either (i) repair or replace such Defective LightRay Products (or the Defective part) or (ii) credit or refund the amount paid by Seller to WRT with respect to such Defective LightRay Product. If WRT exercises its option to repair or replace, WRT shall, after receiving Buyer’s shipment of such Defective LightRay Products, deliver the repaired or replaced LightRay Products to the Buyer’s location. This Section 14(f) sets forth the Buyer’s sole and exclusive remedy and WRT’s entire liability for any breach of the warranty set forth in this Section 14.
(g) Disclaimer. Except for the warranties set forth in this Section 14, WRT makes no warranty with respect to the LIGHTRAY Products, including any (i) warranty of merchantability, (ii) warranty of fitness for a particular purpose, (iii) warranty of title, or (iv) warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
15. TRAINING SERVICES FOR LIGHTRAY PRODUCTS
With respect to any services that include education, training, instruction, or other feedback with respect to use or installation of LightRay Products (collectively, “Training Services”), and without limiting the provisions of Section 15(b), Buyer understands and agrees that: (i) all Training Services are provided without representation or warranty of any kind, and any representation or warranty, including any implied representation or warranty, is hereby disclaimed; (ii) Buyer is in full control of and responsible for its use of Products or other equipment, materials, or other products and any related installation (collectively, “Project Installation”) and none of WRT, Seller, nor any of their respective affiliates will, or will be deemed to, advise on, perform, or oversee Project Installation; (iii) Buyer is required to and, by purchasing Products, is representing that it is knowledgeable and experienced with respect to the use of Products and Project Installation; (iv) while Seller may seek to provide certain tips and recommendations with respect to the use of Products or Project Installation, such Training Services are necessarily superficial in nature and limited in scope; and (v) none of WRT, Seller, nor any of their respective affiliates is under any obligation to supplement any Training Services.
16. Indemnification for training and installation of lightRay products
Buyer waives any and all claims and causes of action arising out of or related in any way to the provision of, or failure to provide, Training Services with respect to LightRay Products. Buyer agrees to indemnify and defend Seller and Waterline Renewal Technologies, Inc., and each of their respective affiliates, and their respective directors, managers, officers, employees and agents (the “LightRay Seller Parties”), and hold the LightRay Seller Parties harmless from and against, any and all claims arising out of or related in any way to Training Services with respect to LightRay Products or the use or installation of or with respect to LightRay Products.
17. Limitation of Liability
The aggregate liability of Seller arising out of this Contract, whether arising from breach of warranty, breach of contract, tort (including negligence), or otherwise, shall not in any case exceed the total of the amounts paid to Seller under this Contract. Under no circumstances shall Seller be liable to Buyer or any third party for any indirect, special, consequential, exemplary, punitive, or incidental damages, including, but not limited to, any type of intangible loss, lost goodwill or business reputation, lost profits, loss of use, loss of data, work stoppage, liability of Buyer to its customers or others, impairment of other goods, or cost of substitute goods or services, whether arising out of any express or implied warranty, breach of contract, tort (including negligence), or any other theory of liability. Buyer assumes sole responsibility and liability for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of the Products either alone or in combination with other products/components. Seller neither assumes nor authorizes any person to assume for it any other liability in connection with the sale or use of the Products or training Services.
18. THIRD PARTY BENEFICIARIES
With respect to sales of LightRay Products, WRT, its affiliates, and their respective directors, managers, officers, employees and agents are third-party beneficiaries of the warranty terms, limitations of remedies, limitations of liability, and indemnification, defense, and hold harmless obligations in these Terms and Conditions of Sale.
19. GOVERNING LAW
This transaction shall be interpreted in accordance with the laws of the State of Illinois and each party is subject to the exclusive jurisdiction of the state courts located in Cook County, Illinois.
20. AMENDMENTS
Any amendments or modifications hereto must be in writing, duly approved and accepted by the parties hereto. Clerical errors are subject to correction.
21. FINANCING
If the Buyer and Seller enter into a separate contract for the financing of any purchases under this order, and the terms and conditions of this order are inconsistent with the terms and conditions of the contract for financing, then the terms and conditions of the financing agreement shall govern. Buyer agrees to execute and deliver to Seller all documents necessary to preserve Seller’s security interest in the Products, material, merchandise or equipment covered by this order.
