POWERCheck STANDARD TERMS AND CONDITIONS
POWERCheck is a state of Washington Limited Liability Company (“Company”). All current and future dealings and/or transactions between Company, any of its divisions, related entities and/or successors in interest and the customer, subcontractor, vendor or other, as well any entity related to said customer, subcontractor, vendor or other (“Recipient”), shall be subject to the following Standard Terms and Conditions (“Terms and Conditions”) unless modified, in writing, by Company, and said Terms and Conditions shall supersede any inconsistent terms and conditions submitted by the Recipient unless expressly accepted in writing by Company.
Companyagrees to extend credit, provide goods and/or services, and/or transact other business, as is from time to time necessary in accordance with the following Terms and Conditions.
All contracts, purchase orders or other written agreements drafted by the Company (“Agreement(s)”) are subject to these Terms and Conditions as they may be amended from time to time which are available for viewing on Company’s website: http://www.power-check.net.
1. Customer Responsibilities. Customers shall pay for the goods and services according to the Terms and Conditions of this purchase order, keep the Company updated with any changes in conditions in a timely fashion and will provide truthful and accurate information upon which the Company can rely.
2. Subcontractor Responsibilities. Subcontractors are obligated to perform the work as defined in the Agreement and according to the latest schedule revision. Time is of the essence in this Agreement. Additionally, Subcontractors are required to timely respond to Company requests, invoice monthly with partial lien waivers unless otherwise indicated in the Agreement, provide necessary submittals and warranty documentation, submit final invoicing and final lien waivers to Company within one (1) week of completion of work. Subcontractors agree that: (1) Company information, including details regarding its Customers, is confidential and shall NOT be disclosed to any third parties or used to solicit this Company’s Customers for additional work; (2) any direct Customer requests for additional work will be referred back to Company; and (3) upon request, Subcontractor will submit necessary tax identification information, such as an IRS W-9 form, to the Company.
3. Agreements. Any Agreement incorporating these Terms and Conditions by reference shall only become effective upon mutual execution by both parties. No Agreement shall be subject to cancellation or change in specifications, shipping schedules, or other conditions agreed upon without Company’s prior written consent, and then only when Company is fully compensated for any loss caused by such cancellation or change, including without limitation, costs of purchased materials, engineering costs, and reasonable profit.
4. Payment. Subject to the establishment of satisfactory credit, terms of payment are as set forth on any invoice; however, in no case shall the terms exceed net thirty (30) days from the date of said invoice. Partial billing will be made for partial shipments and stored materials. No retainage will be allowed unless agreed to in writing by Company. Any sum that Recipient owes under an invoice, but fails to pay when due, shall be subject to a finance charge of the lesser of either 1.5% per month (an annual rate of 18%), or the highest rate permitted by applicable law, to the adjusted balance of an account. Payments made are to be applied in the following order: interest balances, then late fees/penalties and then principal balances. All prices are F.O.B. point of manufacture unless specified otherwise by Company. Quotations expire thirty (30) days from the date issued, and are subject to termination within that period. At its sole discretion, Company may extend quotations.
Goods held beyond delivery date for convenience of Recipient will be invoiced on the date of completion and terms of payment in such case will apply from invoice date. Unless otherwise agreed to in writing, such goods will be subject to charges for warehousing and other expenses incident to such service.
The Recipient shall immediately inform Company of any change in its financial condition or in the structure of its business entity, including, but not limited to, changes to or additions of bank or brokerage accounts, mergers and/or acquisitions, asset purchases or sales, name changes, changes of officers, and any litigation to which the Applicant is a party, including pending and/or threatened suits, both civil and criminal.
If the financial condition or the business structure of Company at any time does not, in the sole judgment of Company, justify the continued extension of credit or the continuance of the work performed or the goods to be supplied on the terms of payment as set forth above, Company may require partial or full payment in advance, or shall be entitled to cancel any part of any order then outstanding, and shall be entitled to payment for reasonable cancellations charges.
In the event of bankruptcy or insolvency of Recipient, or in the event any proceeding is brought against Applicant, whether voluntary or involuntary, under the bankruptcy or any insolvency laws, Company shall be entitled to cancel any credit account and/or any order or portion thereof then outstanding at any time during the period for filing claims against the estate, and shall be entitled to payment for reasonable cancellation charges.
5. Designs. All designs and specifications shown in Company’s catalogues, website or other advertising are subject to change without notice.
6. Force Majeure. Company shall not be liable for any loss, damage, failure, inability and/or delay in delivery or performance due to: the acts of any government, acts of civil or military authority; accidents; fires; wars; act of terrorism; insurrections; civil disorders; floods; strikes; or other labor disturbances or difficulties; shortages of fuel or power; breakdowns of machinery; acts of God; acts of Recipient; failures in source of supply; or any other cause beyond the control of Company; and Company shall then have the right to cancel any order or pending work, or extend any shipping or delivery date, if one or more such contingencies prevent or delay shipment or performance hereunder.
7. Claims. All material is carefully packed for shipment. Risk of loss shall pass to Recipient after delivery to transportation carrier, and Recipient shall continue to be obligated to pay purchase price for the goods in the event of any damage, loss or destruction after delivery at the F.O.B. point. Company will provide Recipient with all reasonable assistance in securing satisfactory adjustment of claims.
8. Equipment and Services Provided by Others. Company shall not be responsible for equipment and/or materials supplied by others, nor for the overall operation of any system comprised of both equipment and/or materials furnished by Company and others. Accordingly, any comments from Company regarding Recipient-furnished drawings are responsive only and Company shall have no liability therefore. Company offers no opinion of a professional nature, including, but not limited to, the preparation or approval of plans, opinions, reports, surveys, designs, specifications and/or supervisory, inspection, or engineering services provided by others.
9. Disclaimer of Warranties. This Agreement is a complete and exclusive statement of the understanding between the parties. There are no express warranties beyond those expressly stated in this writing. Recipient agrees that there have been no affirmations of fact or promises made by Company relating to the goods and becoming part of the basis of the bargain, other than those affirmations and promises expressly set forth herein.
Any affirmation of fact or promise made by the Company to the Recipient which relates to the goods sold hereunder shall not be regarded as part of the basis of the bargain and shall not be deemed to create an express warranty that such goods shall conform to the affirmation or promise. Any description of the goods sold hereunder shall not be regarded as part of the basis of the bargain and shall not be deemed to create an express warranty that such goods shall conform to the description. The exhibition of any sample shall not be regarded as part of the basis of the bargain and shall not create an express warranty that the whole of the goods sold hereunder shall conform to the sample or model.
It is expressly understood and agreed that the Company shall in nowise be deemed or held to be obligated, liable, or accountable upon or under any guaranties or warranties, express or implied, statutory, by operation of law, or otherwise, in any manner or form. This express warranty excludes the warranty of merchantability and all other implied warranties, and the Company shall in no event be liable for a breach of warranty in an amount exceeding the purchase price of the goods.
Company does not in any way warrant the merchantability of the goods delivered to the Recipient under this Agreement. Company does not in any way warrant the fitness of the goods supplied under any Agreement for the particular purpose for which the Recipient intends to use them. It is further mutually understood and agreed that, inasmuch as the Company has no reason to know the purpose for which the Recipient intends to use the goods supplied hereunder, the Company makes no warranty whatever that said goods are fit for any particular purpose.
This warranty does not cover conditions arising from the misuse, negligence, alteration, accident or lack of performance of normal maintenance services; any equipment which shall have been repaired by other than a Company-authorized service outlet so as in any way, in the sole judgment of Company, to affect adversely its performance and/or reliability; the replacement of maintenance items made in connection with normal maintenance services; loss of time, convenience, anticipated profits, use of the equipment or any other incidental, indirect, punitive, special or consequential damages; or equipment removal or reinstallation costs incurred in connection with repair or replacement of defective equipment.
If any equipment, parts and/or materials supplied by Companyare manufactured by someone other than Company, and said manufacturer provides its own warranty, Company’s warranty shall be superseded with respect to such equipment, parts and/or materials. In that event, the manufacturer’s warranty shall be the sole applicable warranty and Companyshall have no further liability or responsibility whatsoever, including any failure on the part of any other manufacturer to meet the conditions of its warranty. There is no warranty liability hereunder unless payment in full for the equipment supplied pursuant to any invoice has been received by Company prior to any warranty claim.
No equipment shall be returned to Companyor its service outlet without written authorization and shipping instructions first having been obtained from Company. Companymust be in timely receipt of the warranty registration materials, which accompanied the equipment, properly filled out, before any such warranty authorization will be issued.
THIS WARRANTY IS THE ONLY WARRANTY MADE BY COMPANY, AND IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USE OR WORKMANLIKE PERFORMANCE. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, REPAIR OR REPLACEMENT, AT COMPANY’S OPTION, OF DEFECTIVE EQUIPMENT, IN THE MANNER PROVIDED HEREIN, SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF COMPANYTO RECIPIENT, WHETHER BASED ON CONTRACT, NEGLIGENCE OR OTHERWISE, WITH RESPECT TO EQUIPMENT PROVIDED PURSUANT TO ANY AGREEMENT, AND IN NO EVENT SHALL COMPANYBE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, FOR LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, DELAY, DETENTION, AND/OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO RECIPIENT, IN DAMAGES OR OTHERWISE, EXCEED THE TOTAL OF ALL PAYMENTS, IF ANY, RECEIVED BY COMPANY FOR THE EQUIPMENT AND SERVICES PROVIDED PURSUANT TO THE TERMS OF ANY AGREEMENT. THE REMEDIES OF RECIPIENT SHALL BE LIMITED TO THOSE PROVIDED HEREIN. IN NO EVENT SHALL COMPANYBE LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, OR FOR DAMAGE TO PROPERTY OF THIRD PARTIES, REGARDLESS OF WHETHER THE SAME IS THE RESULT OF THE GROSS NEGLIGENCE OF COMPANYOR ITS EMPLOYEES.
10. Taxes. Prices quoted and/or invoiced are exclusive of taxes unless specifically stated. The amount of any present or any future sales, occupation, use, tariff, excise or other similar taxes and/or duties for which Companymay be liable, either on its own behalf or on behalf of Recipient, with respect to any orders for equipment and/or services, shall be in addition to the billing prices set forth in any Agreement, and shall be paid by Recipient.
11. Remedies. Upon the failure of Recipient to make any payment when due under any Agreement, to accept delivery at times stated, or to comply with all provisions of any Agreement, and these Terms and Conditions, Company shall have the right to suspend or cancel delivery to Recipient, and Recipient shall not have any cause of action or be entitled to any offset, counterclaim or recoupment against Companyby reason of such action. In addition to any remedies set forth in these Terms and Conditions, Companyshall be entitled to any and all rights and remedies available to it under law, and all rights and remedies available to Companyshall be cumulative. Companyshall be entitled to and Recipient responsible for any attorney’s fees and costs incurred in connection with Recipient’s failure to make any payment when due under any invoice, to accept delivery at times stated, retrieve any vehicle or other equipment from Companyproperty upon thirty (30) days written notice or to comply with all provisions of any invoice and/or these Terms and Conditions
12. Title. Title to any equipment provided by Companyshall not pass to Recipient until the purchase price for any such equipment and for services related thereto are paid in full. In order to ensure payment in full, Recipient grants to Companya security interest in the said equipment and authorizes Companyto file applicable Uniform Commercial Code financing statements with respect to said equipment, and Recipient shall, upon request, execute such financing statements and/or other instruments deemed necessary by Company. Companyshall release such filings upon full payment. Where Companyinstalls parts and/or performs service on and/or stores any equipment or property owned by Recipient or others on behalf of or at Recipient’s direction, Recipient agrees that installation and/or service and/or storage shall create a lien against such equipment and/or property and Companyshall be entitled to hold said equipment and/or property in its sole possession until payment in full has been received by Company.
13. Export Shipments. All equipment shall be delivered packed in accordance with Company’s standard domestic packing methods, unless export packing is expressly ordered, in which case special packing requirements must be specified. Companydoes not assume responsibility for obtaining any export or import license or certificate. Export shipment is subject to Company’s ability to ship under the laws and/or regulations of the United States and other governments. Companyreserves the right to cancel any order, whether or not previously acknowledged, without liability, if at the time of the sale or shipment, said shipment is subject to restrictions or prohibitions by any governmental agency or department of the United States or of any foreign country claiming jurisdiction over the shipment’s transit route or destination.
14. Indemnification. To the fullest extent permitted by law, Recipient agrees to indemnify and hold harmless Companyand all of its agents and employees, from all claims, damages, losses, liabilities, actions, causes of action, costs, fines and expenses, including, but not limited to, interest, penalties, reasonable attorneys’ fees and expenses, and all other amounts reasonably incurred in investigation, defense or settlement of any of the foregoing, arising out of, relating to, or resulting from, any act or failure to act pursuant to any Agreement and these Terms and Conditions, including to the extent caused solely by the gross negligence of Companyor its employees.
15. Miscellaneous. All clerical errors are subject to correction. None of Recipient’s rights under these Terms and Conditions shall be assigned or transferred by Recipient to any other person or entity, whether by operation of law or otherwise, without Company’s prior written approval. The failure of Companyto enforce any rights under these Terms and Conditions shall not constitute a waiver of any such rights, or any other rights, under these Terms and Conditions. Agreements and these Terms and Conditions shall constitute the entire agreement between Companyand Recipient. Agreements and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Washington, notwithstanding any conflict of law provision to the contrary. Parties agree that any dispute resolution shall be sought in state or federal court of Washington in the county in which the Company’s headquarters is located. All of the provisions of these Terms and Conditions are separate and severable. If any of the provisions hereof are held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof.