Terms and Conditions of Sale

  1. Entire Agreement; Amendment: These Terms and Conditions of Sale (these “Terms“) apply to the performance of services (the “Services”) by MEI Rigging & Crating, LLC. (“Seller”) for the purchaser (the “Purchaser”) identified in the accompanying proposal (the “Sales Confirmation”) . The use of the Services is governed by the Sales Confirmation and these Terms (the “Agreement”). All sales of Services by Seller to Purchaser shall be subject to the terms of the Agreement, as supplemented by the quantities and desired delivery dates (such quantities and desired delivery dates, the “PO Quantity and Delivery Terms”) set forth in purchase orders provided by Purchaser and accepted by Seller. The terms of the Agreement, as so supplemented by the PO Quantity and Delivery Terms, shall constitute the entire agreement between the Parties as to each and all sales of Services. In the event that any warehousing, storage, handling, delivery or related services of any property (“Storage Services”) form part of the Services, this Agreement shall include a non-negotiable warehouse receipt (“Warehouse Receipt”) that sets forth (i) a list of the property tendered for Storage Services (the “Stored Property”), including a description of each item and its replacement, (ii) the location of the warehouse or premises where the Stored Property is stored (the “Warehouse”); and (iii) the charges related to Storage Services. For the avoidance of doubt, any reference to “Services” herein shall include “Storage Services” to the extent applicable, and the Warehouse Receipt shall form part of the Sales Confirmation. It is furthermore agreed that Seller’s Warehouse Receipt Terms and Conditions are electronically published at https://www.meiriggingcrating.com/standard-commercial-terms/ and may be amended by Seller from time to time, without notice. Notwithstanding any acceptance by Seller of a purchase order from Purchaser, no additional or different terms set forth in Purchaser’s purchase order, portal, website, or other communication or correspondence previously or hereafter provided by Purchaser to Seller shall be of any force or effect in connection with any sales of Services by Seller to Purchaser, even if (i) in the case of Purchaser’s portal or website, use thereof requires an affirmative “acceptance” of such terms before access is permitted or (ii) Seller “clicks to accept” or otherwise accepts a purchase order from Purchaser that purports to incorporate Purchaser’s standard terms of purchase or any other terms and conditions, except as expressly contemplated hereby with respect to the PO Quantity and Delivery Terms. No change or modification to the Agreement shall be effective unless it is in writing and manually signed by both the Seller and Purchaser.
  2. Price; Taxes; Expenses:
    1. Purchaser shall purchase the Services from Seller at the prices set forth in Sales Confirmation and the Warehouse Receipt, where applicable. Seller’s prices are quoted in US$ and do not include sales, use, or other taxes. Purchaser shall be responsible for all such taxes and any and all other fees and charges related to the Services, including import and export customs fees; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller’s income. The taxes for which Purchaser is responsible hereunder shall be billed separately to Purchaser, unless Purchaser provides Seller with a valid tax exemption certificate acceptable to taxing authorities prior to performance of the Services. Purchaser shall take no action that would or might confer “permanent establishment” or any equivalent status (as defined in any applicable law or tax treaty) on Seller in any country or otherwise subject Seller to taxation in any country. Purchaser agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
    2. With respect to any Storage Services, Purchaser shall pay the storage charges and service fees at the rates set forth on Warehouse Receipt or Seller’s Rate Sheet in effect at that time. All Stored Property are stored on a month-to-month basis. Seller may, upon thirty days written notice, revise its rates during the time the Stored Property are in storage. The current Rate Sheet shall be provided at the time of deposit of Stored Property into storage and upon request by Purchaser. The Stored Property is deemed to be received on the date that the Seller accepts care, custody, and control of the Stored Property, regardless of unloading date or the date the Warehouse Receipt is issued. Notwithstanding the above, (i) a full month’s storage charge will apply to all Stored Property received between the first and the 15th, inclusive, of a calendar month; (ii) one-half month’s storage charge will apply to all Stored Property received between the 16th and last day, inclusive, of a calendar month; and (iii) a full month’s storage charge will apply to all Stored Property in storage on the first day of a calendar month.
    3. With respect to any Storage Services, handling charges cover the ordinary labor involved in receiving Stored Property at the warehouse door, placing Stored Property in storage, and returning Stored Property to the warehouse door for pickup. Handling charges are due and payable on receipt of Stored Property. Unless otherwise agreed in writing, labor for unloading and loading Stored Property will be subject to a charge. Additional expenses incurred by Seller in receiving and handling damaged Stored Property, and additional expenses in unloading from or loading into cars or other vehicles not at warehouse door will be charged to the Purchaser. Labor and materials used in loading rail cars or other vehicles are chargeable to Purchaser. The Seller shall not be liable for any demurrage or detention, any delays in unloading inbound cars, trailers or other containers, or any delays in obtaining and loading cars, trailers, or other containers for outbound shipment unless Seller has failed to exercise reasonable care. If Seller pays any lawful transportation charges on behalf of Purchaser. Purchaser shall promptly reimburse Seller for such charges, and in any case within five 5 business days after receiving an invoice for such charges from Seller.
  3. Payment: Unless otherwise set forth in the Sales Confirmation or Warehouse Receipt, payment terms are NET 30 days from date of invoice. Purchaser agrees to pay interest on all past due invoices at a rate of 18 percent per annum or at the highest allowable rate by law. Further, Seller may suspend the performance of Services if Purchaser fails to pay any amounts when due and the failure continues for five (5) days following Purchaser’s receipt of notice thereof. Purchaser may not deduct, set off, or withhold payment of any amounts due and payable as a set-off of any claim or dispute with Seller. In the event of payment default by Purchaser, Seller will be entitled to recover, and Purchaser agrees to pay, all costs and expenses (including full legal expenses, both in and out of court) incurred by Seller in respect of the collection of the amount due.
  4. Changes: : 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. Seller shall, within a reasonable time after such request, provide a written estimate to Purchaser of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of the Sales Confirmation. 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 a writing manually signed by both parties. In the event that the parties fail to reach an agreement in writing regarding a change request, Seller will be entitled to continue to perform its obligations pursuant to the terms of the original Sales Confirmation. Notwithstanding the foregoing, Seller may, from time to time, change the Services without the consent of Purchaser provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
  5. Purchaser’s Obligations:
    1. Purchaser shall: (i) cooperate with Seller in all matters relating to the Services and provide such access to Purchaser’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services or otherwise performing Seller’s obligations under the Sales Confirmation; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of the Agreement; (iii) provide such Purchaser materials or information as Seller may reasonably request in a timely manner to carry out the Services and ensure that such Purchaser materials or information are complete and accurate in all material respects; (iv) to the extent any Services take place in any location other than Seller’s premises, provide safe ingress and egress for any of Seller’s equipment required to perform the Services (the “Equipment”) and appropriate worksite clearance and access as necessary for Seller’s performance of the Services, including, but not limited to an appropriate staging area for Equipment mobilization and demobilization; (v) to the extent any Services take place in any location other than Seller’s premises, prevent any unauthorized use, access to, or removal of Seller’s Equipment by Purchaser personnel or affiliates; (vi) to the extent any Services take place in any location other than Seller’s premises, be responsible for and supervise all rigging, hooking, unhooking, securing, supporting, or otherwise attaching any loads to be lifted, transported, or otherwise moved by the Equipment; (vii) to the extent any Services take place in any location other than Seller’s premises, provide overall jobsite safety and ensure a safe working environment for Seller that is fully in accordance with the required standards and fully meets the local regulatory requirements; (viii) to the extent any Services take place in any location other than Seller’s premises, provide all permits, custom clearances, licenses and other permissions necessary, especially including—but not limited to—all permits, licenses and other permissions necessary for the Services; and (ix) if personnel are provided by Purchaser to participate in, direct or assist in the completion of the Services, Purchaser will ensure that the personnel it provides is fully qualified to discharge such role, and Purchaser will be fully responsible for all acts and omissions of such personnel, whether in Purchaser’s employment or not.
    2. Site Conditions. To the extent any Services take place in any location other than Seller’s premises, Purchaser shall be responsible for identifying any unusual worksite and surrounding area conditions such as, but not limited to, hidden services and underground services that could be damaged during the course of the Services. Purchaser guarantees the strength of the ground, pavement, soil, and any structure on the worksite and in the area, to withstand the ground bearing pressures of Seller’s Equipment. All power lines in the work area will by identified by Purchaser prior to the Services beginning. Purchaser guarantees neither the Equipment nor any persons in or around such Equipment will be exposed to the danger of energized power lines.
    3. Structural Integrity. Purchaser will guarantee the structural integrity of the freight, object or objects which must be transported and/or lifted and/or moved and/or stored and/or transhipped and/or salvaged in any way whatsoever (the “Load”), including the suitability for the Load for the method used during the Services. Unless explicitly agreed otherwise, Seller will not be responsible for the structural integrity of the Load or for the suitability of the Load for the method used. The Seller is not responsible for any loss or damage to the Load, except in the case of intentional acts by the Seller that are solely designed to cause the loss and/or damage.
    4. Load Information. Purchaser specifically acknowledges and agrees that it is responsible for providing the weight and dimensions of the Load or any Stored Property that are to be rigged, crated, lifted, moved, stored, or otherwise handled as part of the Services and guarantees that the weights and dimensions given to Seller, and its employees, whether for estimating, dispatching, sales or operating personnel will be true and accurate and accepts all responsibility and liability for any actions and operations performed by Seller, its employees, operators or sub rental operators based on the weights and dimensions provided by the Purchaser. For all property tendered for storage, Purchaser shall supply such information and documents as are necessary to comply with all laws, rules and regulations and all documents or information necessary or useful for the safe and proper warehousing, handling, storage, and transportation (if any) of the Stored Property. Seller is entitled to rely on the accuracy, completeness and correctness of any information provided by Purchaser pursuant to this Section, and Purchaser shall indemnify Seller against all losses, damages, and/or costs arising from any inaccuracy, incompleteness or incorrectness of any information supplied by it, even if any such loss, damage and/or costs could have arisen without the fault of the Purchaser.
    5. Where supplied by Purchaser, Purchaser will be responsible for the adequacy of design and strength of any lifting lug or devise which is part of, or attached to any object, and for any and all rigging and lifting apparatus failures or defects, including without limitation the negligent use or negligent supervision of use by Purchaser of rigging or lifting apparatus. All rigging equipment provided by Purchaser must be inspected by Purchaser to ensure that it is undamaged and in good condition and is within the manufacturer’s recommendations and load limitations. Any rigging assistance or material provided, including but not limited to chokers, shackles, slings, fittings or any other rigging equipment that may be loaned to Purchaser by Seller will be used and accepted by Purchaser at its sole risk and responsibility. Purchaser will accept all risk and be responsible to pay for any damage or injury caused by improper or failed rigging provided by Purchaser or loaned to Purchaser, including without limitation damage to Seller or any sub rental personnel, property, rigging or equipment.
    6. Unless expressly agreed otherwise, the Purchaser is responsible for providing sound hoisting, anchor, jacking and/or lashing points, which should be sufficiently strong for the performance of the Services.
    7. Hazardous Materials. Unless otherwise made known to Seller in writing and accepted by Seller, Purchaser warrants that the Load, Stored Property, and any other property of Purchaser that is incidental to the performance of the Services by Seller does not contain any goods that are considered hazardous materials and/or dangerous. If hazardous materials and/or dangerous goods are tendered for storage and accepted by the Seller, a notation shall be so made on the face of this Warehouse Receipt. Purchaser warrants that the Load and Stored Property shall be limited to the permissible materials and quantities in the then current regulations, and agrees to properly classify the Load and Stored Property, to accurately describe the Load and Stored Property, and to provide Seller with all necessary or useful information for the safe storage and handling of the Load and Stored Property including but not limited to, whenever applicable, Material Safety Data Sheets and/or Product Safety Data Sheets. If Purchaser breaches any of the foregoing warranties related to tender of hazardous materials or dangerous goods, or otherwise delivers any such unfit property to Seller, Seller shall be entitled to exercise all available remedies including the immediate destruction or removal of the property from its premises without notice to Purchaser. In the event of the foregoing breach of Purchaser warranties, Purchaser shall be liable for all expenses costs, losses, damages, fines, penalties or other expenses of any sort incurred by Seller in connection with the removal, or destruction, or handling of the hazardous property and shall indemnify Seller against all amounts, liabilities, claims, or damages arising in connection with the hazardous property.
  6. Delivery:
    1. Seller shall use commercially reasonable efforts to meet any performance or delivery dates specified in the Sales Confirmation, it being understood that any such dates shall be estimates only. Seller shall not be liable for any delays, loss or damage in transit. For Services to be performed upon goods to be shipped to Seller by Purchaser, Seller shall be entitled to utilize Purchaser’s account for all shipping charges (FOB Seller’s warehouse or EXW Seller’s loading dock) or Purchaser’s customer account, unless the Order specifies that the Seller’s account is to be billed for which Purchaser shall be responsible for any additional associated handling and freight charge.
    2. In the event that the commencement or continuation of the Services is delayed due to circumstances or reasons for which Seller is not responsible, including, without limitation, by reason of a Force Majeure Event, the Agreement Price will be increased as determined by Seller at its sole discretion, acting reasonably. Furthermore, in the event that the commencement or continuation of the Work, or the returning of the Equipment to Seller, is delayed due to circumstances or reasons for which Seller is not responsible, including, without limitation, by reason of a force majeure event, Purchaser will pay Seller a delay charge to be set out in each Agreement and which Purchaser acknowledges and agrees will be a genuine pre-estimate of damages for the delay. In the event that the starting or continuation of the Seller is delayed due to circumstances for which Seller is responsible for a period greater than sixty (60) days (a “Seller Delay”), the Purchaser will have no other remedy than termination of the Agreement in accordance with Section [16] of these Terms, unless specific delay compensation has been agreed upon in writing between Purchaser and Seller.
  7. Storage. In the event that any Storage Services are provided pursuant to this Agreement, the following provisions will apply:
    1. Purchaser acknowledges that Seller will only issue non-negotiable warehouse receipts. The parties acknowledge and agree that in the event of any conflict between these Terms and the terms and conditions of any Warehouse Receipt issued to Purchaser, these Terms shall supersede and control.
    2. Tender of Stored Property for Storage.
      1. Purchaser represents and warrants that it is the owner or has lawful possession of the Stored Property and all right and authority to store them with Seller and thereafter direct the release and/or delivery of the Stored Property. Purchaser shall (i) tender any Stored Property for storage only during Seller’s posted business hours for the Warehouse; (ii) tender all Stored Property to the Warehouse properly marked and packed for storage and handling; (iii) provide Seller with information concerning the Stored Property that is accurate, complete, and sufficient to allow Seller to comply with all laws and regulations concerning the storage, handling, processing, and transportation of the Stored Property, including information related to ownership of such Stored Property and it value; (iv) furnish at or prior to tender of the Stored Property for storage a manifest in a form approved by Seller listing any categories of Stored Property, brands or sizes to be separately kept and accounted for, and the types of storage and other services requested; and (v) in the event that Purchaser has engaged a third-party to tender, release, or deliver the Stored Property to the Seller, Purchaser shall provide advanced notice to Seller of its engagement of such third-party. Purchaser agrees to notify all parties acquiring any interest in the Stored Property of the terms and conditions of this Agreement and further agrees to indemnify and hold Seller harmless from (i) any claim by third parties relating to the ownership, storage, handling or delivery of Stored Property, including any third party that was engaged to tender, deliver, or release the Stored Property to the Seller, (ii) any claim, including claims by third parties, arising from Purchaser’s failure to comply with any provision of this Section 7(b)(1), including any failure to provide notice of delivery or release of property for storage, or failure to provide any information that may be required to be provided to Seller in order to secure the Stored Property; or (iii) from any other Services provided by Seller under this Agreement. Such indemnification shall include any legal fees or costs incurred from any claim by a third party, regardless of whether or not litigation is actually filed.
      2. Seller may refuse to accept any property for storage if the property tendered for storage does not conform to the description contained in the Warehouse Receipt. Before tendering Stored Property that requires specialized handling or which are dangerous or hazardous, Purchaser shall identify such property and special handling requirements to Seller in writing and Seller may decline to store such property. Purchaser is solely responsible for providing complete and accurate handling and storage instructions for any nonconforming Stored Property, including any applicable safety procedures. If Seller accepts any such nonconforming goods for storage, Purchaser agrees to rates and charges as may be assigned and invoiced by Seller as well as all terms and conditions of this Agreement.
      3. For all Stored Property shipped to the Warehouse, Purchaser shall ensure that the bill of lading or other contract of carriage (“Transportation Contract“) as well as all declarations to government regulatory agencies (i) identify Purchaser as the named consignee, in care of Seller, and (ii) do not identify Seller as the consignee. If any Stored Property are shipped to the Warehouse naming Seller as named consignee on the Transportation Contract, Purchaser shall promptly notify the carrier in writing that Seller is (i) the “in care of party” only and (ii) does not have any beneficial title or interest in the Stored Property. Seller may refuse to accept any Stored Property tendered for storage in violation of this provision, and shall not be liable for any loss or damage to, or misconsignment of, such Stored Property. Whether Seller accepts or refuses goods shipped in violation of this Section, Purchaser agrees to indemnify and hold Seller harmless from all claims for transportation, storage, handling, and other charges relating to such goods, including surcharges, undercharges, rail demurrage, truck/intermodal detention, and other charges of any nature whatsoever. Purchaser further agrees to indemnify, defend, and hold Seller harmless from any costs, liabilities, actions, penalties, or expenses of any kind associated with the improper declaration of Seller as consignee.
    3. Access and Release of Stored Property.
      1. Purchaser shall provide Seller [72] hours’ advance written instructions (each, a “Release Order“) if it desires to order any Stored Property released from the Warehouse. Subject to receipt of such Release Order and payment of all outstanding storage and other fees, Seller shall release the requested Stored Property to Purchaser or its designee upon return of the warehouse receipt or receipts issued for the applicable Stored Property, together with the applicable Release Order, signed by Purchaser.
      2. Purchaser shall provide Seller [72] hours’ advance written instructions if it desires to access the Warehouse for any reason. Seller may decline any Purchaser requests to access the Warehouse for any reason. Purchaser must be accompanied by Seller personnel for any Warehouse access for any reason and Warehouse access shall only be granted during ordinary business hours.
      3. Purchaser shall give Seller a reasonable time after Seller’s receipt of Purchaser’s written instructions to carry out Purchaser’s instructions to release the Stored Property to Purchaser or its designee. Seller may without liability rely on any information contained in any Release Order or other communication from Purchaser. Purchaser shall be responsible for all shipping, handling, and other charges assessed by carriers and/or third parties in connection with the delivery and/or other shipment of the Stored Property. A Release Order providing instructions to transfer Stored Property on the books of Seller to any other Purchaser of goods in the Warehouse will not be effective until such Release Order is delivered to and accepted by Seller. The Purchaser of record shall be responsible for all charges up to the time the actual transfer of the applicable Stored Property is made. When Stored Property in storage are transferred from one party to another through issuance of a new warehouse receipt, a new storage date for the transferee will be established effective on the date of transfer.
      4. In the event that Purchaser gives written instructions to Seller to scrap any Stored Property, Seller shall bill the full cost of scrapping any Stored Property to Purchaser, less an amount equal to the net proceeds of the sale of any resulting scrap materials.
    4. Storage Location and Transfer of Stored Property. Seller will store the Stored Property at its discretion at any one or more buildings at Seller’s warehouse location identified on the Warehouse Receipt. The identification of any specific location with the Seller’s warehouse complex does not guarantee that Stored Property shall be stored therein. Upon ten (10) days prior notice provided to Purchaser, Seller may at its own expense, remove Stored Property to any other warehouse complex operated by Seller. Seller may move, upon [NUMBER] days’ notice to Purchaser any Stored Property in storage from the Warehouse to any of the other storage facilities owned or leased by Seller. Seller may, without notice, move any or all of the Stored Property from one location within the Warehouse or other warehouse in which the Stored Property are stored to another location within the same facility.
    5. Temperature or Humidity Controlled Storage. Unless specifically agreed to in writing, Seller shall not be responsible for storage of the Stored Property in a temperature or humidity controlled environment. Purchaser knowingly accepts that the Stored Property will be warehoused in a non-temperature/humidity controlled environment. Seller will not be responsible for any loss or damage to the Stored Property that result from fluctuations in temperature range or in humidity levels of the warehouse. Seller will furthermore not be responsible for losses or damages incurred to Perishable Stored Property, unless otherwise agreed to in writing prior to tender of the Stored Property for storage.
    6. Termination of Storage.
      1. The Seller is entitled at any time to require that the Stored Property be removed prior to expiry of the applicable storage period if there arises such circumstance under which Purchaser cannot reasonably expect Seller to continue storage, and Purchaser must promptly comply with such requirement to reclaim the Stored Property. Without limitation, the following circumstances shall be sufficient to allow Seller to request reclamation of the Stored Property: (i) presence of the Stored Property is likely to cause loss of or damage to any other load, the storage location, tools or equipment, or is likely to cause injury to any individuals; or (ii) if the Load is perishable and is stored past its expiration date. Purchaser’s obligation to pay storage fees to Seller shall continue until such time as the Stored Property is removed from Seller’s premises. If the Stored Property is not so removed, Seller may exercise its rights under applicable law including but not limited to selling the Stored Property.
      2. Seller reserves the right to terminate storage and to require the removal of the Stored Property, or any portion thereof, for any reason by giving Purchaser thirty (30) days advance written notice. Purchaser shall be responsible for payment of all charges attributable to said Stored Property within the stated period and for removing the Stored Property from the warehouse upon payment of all charges. If the Stored Property is not so removed, Seller may exercise its rights under applicable law including but not limited to selling the Stored Property.
    7. Seller does not represent or warrant that the Warehouse or the contents of the Warehouse cannot be destroyed by fire or any other cause. Seller will not be required to maintain a watchman or a sprinkler system, and Purchaser acknowledges that Seller’s failure to do so will not constitute negligence under Section [12(b)] or otherwise. Stored Property is not insured by Seller for the benefit of Purchaser against fire or other casualty.
    8. If this Agreement is terminated for any reason, Purchaser shall promptly arrange the removal of all Stored Property from the Warehouse, subject to payment of all outstanding fees and charges due hereunder. If Purchaser does not promptly remove such Stored Property, Seller may without liability remove the Stored Property and sell the Stored Property at public or private sale without advertisement and with or without notification to all persons known to claim an interest in the Stored Property (to the last known place of business of the person to be notified) in the manner provided by law. If Seller, after a reasonable effort, is unable to sell the property, it may dispose of them without liability in any lawful manner.
  8. Force Majeure; Purchaser’s Acts or Omissions: Seller shall not be liable for any failure to perform, or delay in the performance of, its obligations under the Agreement if prevented to do so by a cause beyond Seller’s reasonable control and without the fault or negligence of Seller. Without limiting the generality of the foregoing, such causes include acts of God, the public enemy, fires, floods, storms, epidemics, earthquakes, riots, civil disobedience, war or war operations, or restraint of government. Further, if Seller’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Purchaser or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Purchaser, in each case, to the extent arising directly or indirectly from such prevention or delay.
  9. Inspection; Rejection of Services: “Non-Conforming Services”, as used in these Terms, means only that the Services performed differ from the specifications set forth in the Sales Confirmation. Purchaser will evaluate the Services within five (5) days following delivery thereof (the “Inspection Period”). Purchaser will be deemed to have accepted the Services unless it notifies Seller in writing of any Non-Conforming Services during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. If Purchaser timely and properly notifies Seller of Non-Conforming Services, Seller will (i) reperform the Non-Conforming Services with conforming Services, or (ii) credit or refund the purchase price for the Non-Conforming Services. PURCHASER ACKNOWLEDGES AND AGREES THAT THE REMEDY SET FORTH IN THIS SECTION 8 IS PURCHASER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE AND EXCLUSIVE LIABILITY, FOR THE DELIVERY OF NON-CONFORMING SERVICES. Except as provided in this Section 8 and Section 9, all sales of Services are final.
  10. Suspension for Safety. The Services will at all times be performed in accordance with the applicable occupational health and safety laws and regulations, with Seller’s own health and safety guidelines and policies, and within the manufactures’ lift charts and operating manuals. Seller reserves the right to suspend the provision of any Services or the use or operation of any of the Equipment if Seller judges at its sole discretion that it is appropriate to do so for any reasons of safety of persons or for the protection of the Equipment or property, and in no event will the Purchaser be entitled to claim damages as against Seller or any other person in regards to any losses arising due to such suspension.
  11. Intellectual Property. All intellectual property rights to drawings, technical specifications, designs, calculations, models, etc. which have been produced by Seller and have been provided to Purchaser, will at all times remain vested in and owned by Seller. These documents will not be copied, displayed or provided to third parties without the prior written express approval of Seller. Any document produced by Seller in relation to an Agreement or Work is intended for the sole use of Purchaser. The documents may not be relied upon by any other party without the express written consent of Seller, which may be withheld at Seller’s discretion. Any such consent will provide no greater rights to the third party than those held by Purchaser under these Terms and will only be authorized pursuant to the conditions of a separate letter issued by Seller.
  12. Limited Warranty:
    1. Warranty as to Services. Seller represents and warrants to Purchaser that it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
    2. Warranty as to Storage Services. Seller shall not be liable for any loss or damage to the Stored Property tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by Seller to exercise the level of care with regard to the Stored Property that a reasonably careful person would have exercised under the circumstances. Seller is not liable for damages which could not have been avoided by the exercise of such care
    3. Disclaimer of Warranties. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 9(a) AND 9(b), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; AND (v) ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
    4. Exclusion from Warranty Remedies.
      1. Seller shall not be liable for a breach of the warranties set forth in Section 12(a) unless: (i) Purchaser gives written notice of the defective Services, reasonably described, to Seller within 10 days after the date on which Purchaser discovers or ought to have discovered the defect; and (ii) Seller reasonably verifies Purchaser’s claim that the Services are defective. Seller shall not be liable for a breach of the warranty set forth in Section 9(a) where Services (1) have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Seller; (2) have been reconstructed, repaired, or altered by persons other than Seller or its authorized representative; or (3) have been used with any third party product or hardware that has not been previously approved in writing by Seller. Purchaser will be responsible for the cost of any labor required by Purchaser or third parties to assist Seller’s in performing the first diagnosis.
      2. Seller shall not be liable for a breach of the warranties set forth in Section 12(b) unless: (i) Purchaser gives written notice of any claim to Seller within 10 days release of the Stored Property by Seller; and (ii) Purchaser is notified by Seller that loss or damage to part or all of the Stored Property has occurred, as the case may be, reasonably described. No lawsuit or other action may be maintained by Purchaser against Seller for loss or damage to the Goods unless a timely written claim has been given by Purchaser as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of: (x) three (3) months after the date of delivery of the Stored Property to Purchaser or its nominee by Seller or (y) three (3) months after Purchaser is notified by Seller that loss or damage to part or all of the Goods has occurred.
    5. Sole and Exclusive Remedy. Subject to Section 9(c), with respect to Services determined to be defective, Seller shall (1) re-perform the applicable Services or (2) credit or refund the price of such Services at the pro rata contract rate, whichever remedy Seller elects to provide in its sole discretion. THE REMEDIES SET FORTH IN THIS SECTION 9(f) SHALL BE THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY OR OTHER DEFECT OR DEFICIENCY IN THE SERVICES.
  13. Limitation on Liability:
    1. Limitation on Damages. IN NO EVENT SHALL SELLER BE LIABLE TO PURCHASER OR ITS REPRESENTATIVES, EMPLOYEES, OFFICERS, DIRECTORS FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, THE PERFORMANCE OF ANY SERVICES ON PURCHASER’S PREMISES,TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE.
    2. Aggregate Liability. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, SERVICES, INCLUDING THE PERFORMANCE OF ANY SERVICES ON PURCHASER’S PREMISES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER BY PURCHASER FOR THE SERVICES SOLD HEREUNDER DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE LIABILITY AROSE. The limitation of liability set forth in this Section 10(b) shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from a defect in the Services.
    3. IN NO EVENT SHALL SELLER’S LIABILITY UNDER THIS SECTION [12] EXCEED (I) THE ACTUAL COST TO REPAIR, RESTORE AND/OR REPLACE ANY DAMAGED STORED PROPERTY, OR (II) 50 CENTS PER POUND FOR THE DAMAGED STORED PROPERTY, WHICHEVER IS LESS. THE REMEDIES SET FORTH IN THIS SECTION [12] SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF SELLER’S OBLIGATIONS SET FORTH IN THIS SECTION [12].
    4. No lawsuit or other action may be maintained by Purchaser against Seller under this Agreement unless such lawsuit or other action is commenced no later than one (1) year following the completion of the Services hereunder.
  14. Indemnification: Purchaser shall indemnify, defend and hold harmless Seller and its parent company, their respective subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders, and employees from and against any loss, personal injury, death, damage to or loss of property, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, fees, or expenses (including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) arising out of or occurring in connection with: (i) Purchaser’s use of the Services, (ii) Seller’s performance of Services, (iii) the conduct of Seller’s employees on Purchaser’s premises; (iv) Purchaser’s breach of the Agreement, or (v) any negligence or willful misconduct of Purchaser.
  15. Insurance:
    1. Purchaser shall insure, at its sole expense against all risks, all property owned by Purchaser or third parties that are supported, transported, crated, lifted or otherwise moved, or stored or warehoused as part of the Services, against any loss or damage sustained during the performance of the Services by Seller, for an amount equal to their value. In addition, Purchaser shall obtain, pay for, and maintain in full force and effect during the period in which Seller is performing Services or supplying Goods and for a period of 2 years thereafter, insurance as follows: (a) Workers’ compensation and employers’ liability insurance with limits to conform with the greater of the amount required by applicable law or one million dollars ($1,000,000) each accident, including occupational disease coverage; (b) Commercial general liability insurance with limits not less than five million dollars ($5,000,000) combined single limit for bodily injury, death, and property damage, including personal injury, contractual liability, independent contractors, broad-form property damage, and products and completed operations coverage; (c) Commercial automobile liability insurance with limits not less than one million dollars ($1,000,000) each occurrence combined single limit of liability for bodily injury, death, and property damage, including owned and non-owned and hired automobile coverages, as applicable; (d) Contractor’s Pollution Liability Insurance in the amount of not less than $2,000,000 per occurrence; (e) excess/umbrella non-contributory insurance in the amount of at least $4,000,000 and Purchaser’s primary and excess/umbrella policies must be endorsed so that they are primary and non-contributory to all of Seller’s insurance policies and Seller’s policies are excess to Purchaser’s policies; and (f) an appropriate form of all risk insurance, on a primary non-contributory basis, to cover the full insurable value of any equipment used by Seller, for its loss or damage from any and all causes, including, but not limited to, overloading, misuse, fire, theft, flood, explosion, overturn, accident, and acts of God occurring during the Term. Purchaser shall give thirty (30) business days prior written notice to Seller of cancellation, non-renewal, or any material change in coverage, scope, or amount of any policy.
    2. All policies are to be written by insurance companies acceptable to Seller. Seller and all affiliated partnerships, joint ventures, corporations and anyone else who Seller is required to name as an additional insured, are to be included as additional insured on all liability insurance policies, including excess/umbrella policies, Purchaser will name Seller as a Loss Payee on all insurance policies which will contain a waiver of subrogation in favor of Seller, and Purchaser will provide all insurance certificates to Seller when requested. Purchaser understands that the waiver of subrogation will bind its insurers of all levels, and agrees to put these insurers on notice of this waiver and to have any necessary endorsements added to the insurance policies applicable to an Agreement. All policies will be endorsed to require the insurer to give thirty (30) days advance notice to all insureds prior to cancellation and all Seller’s policies, and the policies of anyone Seller is required to insure are excess over all of Purchaser’s policies.
    3. Purchaser’s agreement to accept any liability and to indemnify and hold Seller harmless from any liability, damage and loss are in addition to, and not an alternative to, these insurance provisions and the purchase of any of the above coverages will not operate to waive any of the above indemnity provisions. To the extent that Seller may perform under an Agreement without Purchaser obtaining the above coverages, such an occurrence will not operate, in any way, as a waiver of Seller’s right to maintain any breach of contract action against Purchaser. Purchaser will promptly notify the applicable insurance provider and Seller if Purchaser receives a demand or a claim from a third party.
    4. In the event of loss of or damage to the Load for any reason, Seller shall provide any cooperation or assistance reasonably requested by Purchaser in order to assess the loss or damage; provided that Seller may make such cooperation or assistance conditional upon the payment of any amounts outstanding that are owed to Seller by Purchaser.
    5. Optional Insurance Offering. Seller does not insure the Stored Property while in storage and the storage rates or charges billed to Purchaser do not include any insurance on the Stored Property. The Stored Property will therefore not be insured for any loss or damage, and the Limitation of Liability set forth in Section 13 shall apply in all circumstances where Seller is legally liable for such loss or damage, unless the Purchaser has requested in writing that Seller obtain insurance for the Purchaser’s benefit, and the Purchaser has paid the required premium to Seller for such additional insurance. Except as provided above, Seller will not obtain insurance on the Stored Property for Purchaser’s benefit while the Stored Property are being stored at Seller’s facility.
  16. Lien Rights. Seller shall have a lien on the Stored Property and upon any and all other property belonging to Purchaser in Seller’s possession, custody or control for all charges, advances or amounts of any kind due to Seller under this Agreement or under any prior or subsequent invoices issued to Purchaser by Seller (including charges for storage, handling, transportation, demurrage, terminal charges, insurance, labor, and any other charges incurred). Seller shall have a lien on the Stored Property and any other property belonging to Purchaser that is in its possession for the purpose of performing the Services and may refuse to surrender possession of any such property until all charges or debts are paid in full. If such amounts remain unpaid for 30 days after Seller’s demand for payment, Seller may sell the Stored Property and any other applicable property at public auction or private sale or in any other manner reasonable, and shall apply the proceeds of such sale to the amounts owed. Purchaser remains responsible for any deficiency outstanding to Seller.
  17. Cancellation: Any order made hereunder may not be cancelled in whole or in part by Purchaser without the Seller’s written consent and payment of reasonable cancellation charges designated by Seller. Any order made hereunder may not be cancelled in whole or in part by Purchaser without the Seller’s written consent and payment of reasonable cancellation charges designated by Seller.
  18. Termination: In addition to any other remedies Seller may have, Seller may terminate the Agreement with immediate effect and without liability, upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under the Agreement and the failure continues for five (5) days after Purchaser’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with the terms of the Agreement, in whole or in part, including anticorruption, bribery and similar laws or regulatory or legal compliance requirements; 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.
  19. Compliance with Law: Purchaser shall comply with all applicable laws, regulations and ordinances, including anticorruption, bribery and similar laws or regulatory or legal compliance requirements. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that are necessary for the performance of the Services under the Agreement. Purchaser shall ensure that its facilities and premises are reasonably safe and compliant with all applicable (i) federal, state, regional and local laws, ordinances, statutes, rules and regulations, including all applicable safety laws, ordinances, statutes, rules and regulations, (ii) safety standards and (iii) industry standards. Purchaser shall comply with all export and import laws of all countries that are involved in the performance of Services under the Agreement. Seller may terminate the Agreement without liability if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Services. Without limiting the foregoing, Purchaser agrees and warrants that in the performance of its obligations under the Agreement or its use of the Services, Purchaser shall not take any action which will render Seller liable for a violation of the U.S. Foreign Corrupt Practices Act including any similar anti-corruption law or legislation, codes, rules, policies and regulation which prohibit a party from paying, offering, promising or giving anything of value to any employee or official to influence any act or decision by such person or by any government body for the purpose of obtaining, retaining or directing business or securing an improper advantage thereto in any way related to this Agreement. Violation of this Section by Purchaser shall give Seller the immediate right to suspend or terminate the Agreement with no liability.
  20. Export: The sale of the Goods by Seller to Purchaser is contingent upon Purchaser’s successful completion of all applicable export requirements. Regardless of any disclosure by Purchaser to Seller of the ultimate destination of the Goods, Purchaser will not export directly or indirectly any Goods without first obtaining written authorization from Seller and obtaining an export license from the Department of Commerce or other agency of the United States Government as required. Purchaser warrants that it will not use any Good in any activity related to the proliferation of chemical or biological weapons, nuclear explosive devices or missiles, or any activity prohibited by the Export Administration Regulations administered by the U.S. Department of Commerce and the International Traffic in Arms Regulations administered by the U.S. Department of State.
  21. Governing Law; Disputes: All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Texas. IN NO EVENT SHALL THIS AGREEMENT OR ANY TRANSACTIONS HEREUNDER BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, WHICH IS HEREBY EXPRESSLY DISCLAIMED. All disputes and claims between the parties which may arise out of or in connection with the Agreement shall be settled by good faith negotiation between an executive level representative of each party. If the parties are nonetheless unable to reach agreement, such dispute shall be resolved by binding arbitration. The arbitration shall be administered by the American Arbitration Association according to its rules of Commercial Arbitration then in force. The arbitration shall take place in Texas, before a panel of three arbitrators. The language to be used in the arbitration shall be English. Judgment upon the award of the arbitrator may be entered in any court of competent jurisdiction.
  22. Waiver: No waiver by Seller of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure by Seller to exercise, or delay by Seller in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. Except as expressly provided herein, no single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  23. Confidential Information: All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the Agreement is the confidential information of Seller (“Confidential Information”). Purchaser shall not use the Confidential Information except and only to the extent necessary to perform its obligation under the Agreement. Purchaser shall not disclose or copy the Confidential Information unless authorized in advance by Seller in writing. Upon Seller’s request, Purchaser shall promptly return all Confidential Information to Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure as evidenced by contemporaneous written records; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
  24. Assignment: Purchaser shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under the Agreement.
  25. Subcontracting. Seller may at any time arrange for all or part of the Services to be performed by third parties.
  26. Relationship of the Parties: The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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.
  27. No Third-Party Beneficiaries: The Agreement is for the sole benefit of Seller and Purchaser and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
  28. Notices: 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 Sales Confirmation or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery (in such case, notice shall be deemed given upon delivery), nationally recognized overnight courier, with all fees pre-paid (in such case, notice shall be deemed given two days after deposit with the courier), or facsimile with confirmation of transmission (in such case, notice shall be deemed given upon receipt by the notifying party of confirmation of transmission). Except as otherwise provided in the Agreement, a notice is effective only if the party giving the notice has complied with the requirements of this Section.
  29. Severability: If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  30. Books and Records: Purchaser shall maintain books, records and accounts of all transactions and activities covered by or relating to the Agreement, the Services and permit full examination and audit of such books, records and accounts by Seller and its representatives upon Seller’s request from time to time.
  31. Survival: Provisions of these Terms which by their nature should survive beyond the term of the Agreement will remain in force after any termination or expiration of the Agreement, including, but not limited to, the following provisions: “Limited Warranty”, “Limitation on Liability”, “Indemnification”, “Insurance”, “Compliance with Law”, “Export”, “Governing Law; Disputes”, “Confidential Information”, “No Proprietary Rights in Goods”, “EULA”, “Books and Records”, “No Solicitation”, and “Survival”.