Proprietary property of Tri Tool ™ Inc. No reproduction, use, or duplication of the information shown here is permitted without express written consent of Tri Tool Inc.
DEFINITIONS: As used herein: “Lessor” means Tri Tool Inc. “Lessee” means the entity to which Lessor’s Offer is made or the entity Leasing Goods from Lessor. “Goods” means the products, parts, materials, and/or equipment included in Lessor’s Offer and/or Lessee’s Order. “Standard Product” means fully designed and developed products previously sold by Lessor to customers. “Non-Standard Product” means non-catalog products, customer specific, proprietary parts previously manufactured upon customer request. “Offer” means any quotation, for Goods rented from Lessor to Lessee. “Order” means an order issued by Lessor to Lessee for the rental of Goods. Lessor and Lessee are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.
OFFERS: Unless stated otherwise in writing by Lessor, Lessor’s Offer shall be valid for thirty (30) days from the date of such Offer. Any extension to the validity period shall be at Lessor’s sole discretion. Lessor reserves the right to withdraw and/or revise the Offer at any time during the validity unless it is accepted by Lessee in its entirety. The availability of Goods is subject to change until the Order is received and approved. The prices offered by Lessor apply only to the specific details of the Offer, including quantities, specifications, and delivery schedules. Lessee’s eligibility for any discounts or other special incentives offered by Lessor is strictly conditioned upon Lessee’s acceptance of and adherence to the terms and conditions of Lessor’s Offer.
ACCEPTANCE: Lessee’s unconditional acceptance of Lessor’s terms and conditions irrespective of any different terms and conditions included in Lessee’s Order, shall be made by either (a) Lessee’s issuance of an Order in response to Lessor’s Offer for Goods or Services or (b) Lessee’s receipt and acceptance of any Goods, consumables, or services from Lessor, whichever occurs first. Lessee acknowledges that upon receipt of the Goods, they are examined and
verified Goods are secure and in good working condition. Lessee’s failure to object in writing to the condition of the Goods within 6 hours after receipt thereof shall be deemed conclusive that all of the Goods are in good working order when delivered. Lessee’s Order is subject to approval by Lessor. The terms and conditions set forth herein, along with any currently active Distributor, Representative, or Nondisclosure Agreements between the parties, constitute the entire agreement between the parties hereto, and shall prevail over and be binding upon the parties regardless of any provisions contained in any purchase order, invoice or other comparable document which lessor may subsequently sign for the accommodation or convenience or at the request of Lessee. Any currently active Distributor, Representative, or Nondisclosure Agreements between the parties shall be considered Special Terms and Conditions for the purposes of Order of Precedence. Lessor’s failure to object to any terms and conditions or any other provisions contained in any communication from Lessee do not waive any of Lessor’s terms and conditions specified herein. Lessor’s terms and conditions shall govern and apply to Orders accepted by Lessor whether they are attached to Lessor’s Offer or referenced on Lessor’s website. The failure by lessor at any time to insist upon performance by Lessee of any conditions and/or term of this agreement shall not be construed as a waiver of Lessor’s right to thereafter demand strict compliance with all terms and conditions hereunder.
PRICES: All prices, invoices, and payments shall be in the currency of U.S. dollars. Unless otherwise expressly stated in Lessor’s Offer, prices are valid only for the calendar year in which an Order is issued to Lessor. The prices for any Goods or Services to be delivered in a calendar year after the year in which an Order is issued are, at Lessor’s sole discretion, subject to annual escalation as reasonably determined by Lessor. These price changes will be effective January 1st of each such future calendar year unless otherwise determined by Lessor.
RENTAL PERIOD: The rental periods shall be as agreed between lessor and lessee. For Goods for machinery of up to but not including 12 inch pipe size, the Goods may be rented for daily, weekly or monthly periods. For Goods for machinery of 12 inch pipe size or more, the Goods may be rented for three day, weekly or monthly periods.
PAYMENT TERMS: Subject to Lessor’s approval of Lessee’s credit, payment terms for domestic and international Orders are at Lessor’s sole discretion. Payment terms shall be either (i) cash in advance by wire transfer (ii) by an irrevocable letter of credit confirmed with Lessor’s bank, (iii) wire transfer, or otherwise stated in Lessor’s Offer. Customers requesting payment to be made in form of a Letter of Credit will incur a transaction fee of $1,500.00 USD. Transfer of funds via wire transfer is permitted before shipment date.
Wire Transfer Info:
ABA#121 137 522, Comerica Bank, 333 W. Santa Clara Street, San Jose, CA 95113
RE: Tri Tool, Account #1893114379, Swift Code: MNBDUS33 (Domestic) or
RE: Tri Tool, Account #1893979482, Swift Code: MNBDUS33 (International)
Lessee shall pay interest on all late payments at a rate equal to the lesser of (i) one and a half percent (1.5%) per month or (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under Lessor’s terms and conditions or at law, which Lessor does not waive by the exercise of any rights hereunder, Lessor shall be entitled to suspend the delivery of any Goods and/or performance of Services if Lessee fails to pay any amounts when due hereunder and such failure continues for five (5) business days following written notice thereof. Lessee shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Lessor, whether relating to Lessor’s breach, bankruptcy or otherwise. If Lessor at any time determines, in its sole and absolute discretion, that Lessee is not financially sound or responsible or may be unable to pay in full and in a timely manner all amounts due to Lessor, Lessor shall have the right to require immediate payment in full in cleared funds prior to continuing work or incurring any further cost. Lessee must raise in writing, any dispute relating to an invoice within fifteen (15) days of the date of invoice. If Lessee’s dispute is held to be valid, Lessor shall credit Lessee the disputed amount.
TAXES: Unless expressly stated otherwise in Lessor’s Offer, all prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Lessee. Lessee shall be responsible for all such taxes, duties, and charges; provided, however, that Lessee shall not be responsible for any taxes imposed on, or with respect to, Lessor’s income, revenues, gross receipts, personnel or real property, or other assets.
INSPECTION, TESTING, AND QUALITY ASSURANCE: All Goods manufactured by Lessor are subject to Lessor’s standard inspection and quality assurance processes and, if applicable, acceptance testing at Lessor’s facility.
PACKING AND PACKAGING: All Goods shall be packed and packaged in accordance with Lessor’s standard commercial packing and packaging methods. Any non-standard or special packing or packaging requested by Lessee is subject to Lessor’s written agreement and shall be at Lessee’s sole expense.
DELIVERY, SHIPPING TERMS, TITLE, and RISK OF LOSS: Unless agreed otherwise by Lessor in writing, shipping terms shall be as expressly stated in Lessor’s Offer. If Lessor’s Offer does not specify shipping terms, all shipments shall be delivered in accordance with the version of Incoterms in effect as of the date of Lessee’s Order. Where Lessor ships Goods to Lessee, Lessor shall bill all freight charges incurred for shipping of Goods to Lessee at cost plus 10%.
Risk of loss shall pass upon such delivery. Title to the Goods is now and at all times hereafter shall remain and be vested only in Lessor. Where Goods leave the Lessor’s premises in the morning, rental commences on that day and where Goods leave the Lessor’s premises in the afternoon, rental commences on the day thereafter. Where Goods are returned to Lessor’s premises in the morning, rental terminates on the day before such return and where Goods are returned to Lessor’s premises in the afternoon, rental terminates on that day. No allowance will be made for Sundays, Holidays or time in transit, or any period of time the Goods may not be in actual use while in Lessee’s possession. Goods ordered to be picked up by Lessor from Lessee’s jobsite or premises remains the responsibility of the Lessee until such time as Lessor can dispatch an employee to make said pickup during regular business hours. Lessee shall keep the Lessee’s interest in this agreement and the Goods free from all liens and encumbrances. Lessor does not provide, and shall not be liable for insuring the transit of Goods sold. Lessee shall acquire comprehensive, all-risk insurance against loss, theft, damage or destruction of the Goods in an amount no less than the full insurable value of the Goods. Lessor shall be named insured on Lessee’s insurance policy and all proceeds for such loss shall be payable solely to Lessor. Lessee shall also provide comprehensive general liability insurance (including products liability) in an amount not less than $1,000,000.00. Such insurance certificate shall provide Lessor with ten (10) days’ notice of any cancellation. A certificate of insurance must be received by Lessor before any Good is shipped or allowed to be picked up. Lessee is responsible for all Goods once they leave Lessor’s dock. Should Lessor prepay shipping, insurance, or other related charges to expedite delivery, Lessee agrees to reimburse Lessor promptly for such charges.
EXPORT COMPLIANCE: All Goods, Services, and technical information provided by Lessor to Lessee may be subject to the export control laws and regulations of the United States, potentially including but not limited to the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls (“OFAC”). The Parties agree that all exports related to this agreement will be in compliance with these laws and regulations and may be subject to the export and/or import regulations in other countries. Lessee agrees and hereby covenants that it will not export or re-export Goods to Cuba, Iran, North Korea, Sudan, Syria, or to any restricted/embargoed country as may be designated from time to time by (i) the U.S. Government; (ii) the U.K. Government; and/or (iii) other applicable country governmental agencies as required unless otherwise authorized by the U.S. Government, the U.K. Government, and/or other applicable country governmental agencies as required. Lessee further agrees that it will not (i) sell, transfer, export or re-export Goods for use in activities that involve the development, production, use, or stockpiling of nuclear, chemical, biological weapons, or nuclear, chemical or biological missiles, nor (ii) use such Goods in any facilities that are engaged in activities related to such weapons or their delivery systems. Lessee acknowledges that U.S. law prohibits the sale, transfer, export, re-export to, or participation in any export transaction involving Goods with individuals or companies listed in (i) the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List; (ii) the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons Lists; or (iii) the U.S. Department of State’s Debarred Persons List. Lessee agrees to indemnify and hold Lessor harmless from any claims or liability arising from Lessee’s failure to comply with all such export control laws and regulations.
DELIVERY SCHEDULES AND FORCE MAJEURE: All dates for delivery of Goods and provision of Services as defined on the Offer, or Order are approximate estimates only and require prompt receipt of all necessary Lessee-furnished information, instructions, materials, and Goods, if applicable, and Lessor shall not be liable for non-adherence with such dates. Any delay or failure of Lessor to perform its agreed obligations under Lessee’s Order shall be excused if such delay or failure is the result of an unforeseeable event or occurrence beyond the reasonable control of Lessor, and without its fault or negligence, including, but not limited to, acts of God, actions by any governmental authority, inability to obtain any necessary import or export licenses or other consents, terrorism, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, supplier delays, labor problems (including lockouts, strikes, and slowdowns), inability to obtain power, utilities, materials, labor, Goods, transportation, or court injunction. Without limiting the foregoing, Lessor’s obligation to deliver Goods is, in part, conditioned upon its ability to obtain the supplies necessary to produce the Goods from Approved Sources. “Approved Sources” means sources of supply
which Lessor has approved under its quality assurance system, described in the Inspection, Testing, and Quality Assurance section herein. If Lessor cannot obtain all supplies required to produce the Goods or obtain supplies in sufficient time to meet the scheduled delivery date, Lessor may, at its sole option and without any liability to Lessee, either reschedule the delivery, terminate the entire Order, or terminate just that portion of the Order applicable to the Goods which Lessor can no longer timely supply. Lessor may also offer substitute Goods in place of any Goods which it can no longer timely supply. Without liability to Lessee and in satisfactory performance of this Order, Lessor reserves the right to supply Goods which include parts purchased from an Original Equipment Manufacturer (OEM) or its franchised distributor, or parts screened under its quality assurance system.
CHANGES: Lessee may not suspend performance of an Order, nor reschedule any delivery, except as specifically agreed to in writing by Lessor. Lessee may request changes within the general scope of Lessee’s Order by providing written notice to Lessor. However, such changes shall not be effective unless and until Lessor, at its sole discretion, consents to such changes in writing. If any such changes cause an increase in the cost or time required for performance of any part of Lessee’s Order, an equitable adjustment shall be made to the price and/or delivery schedule, and the Parties shall execute a written modification to Lessee’s Order to reflect such changes and adjustments. Lessor may make changes to the design of Goods without prior notice and substitute the changed Goods in satisfaction of its performance of an Order, provided that the changed Goods meet the performance specifications of the original Goods. Further, should Lessor be required to modify its Goods as a result of or in response to new or changed laws, regulations, rules or other directives, its equivalents in other nations and
jurisdictions, or any other governmental body of the United States or other nation or jurisdiction, then Lessor shall be relieved of its obligation to deliver the original Goods, without liability to Lessee. If Lessor does modify the Goods in response to these new or changed laws, regulations, rules or other directives, then Lessor shall be entitled to an equitable increase to the price and extension of the delivery schedule for the modified Goods should Lessee desire their delivery. This equitable adjustment shall be agreed by the Parties prior to delivery.
ORDER CANCELLATION and RETURNS: Lessor, at its sole discretion and subject to Lessor’s written authorization, may allow Lessee to cancel all or a portion of Lessee’s Order if Lessee’s notice requesting cancellation is received by Lessor at least thirty (30) days prior to the scheduled delivery date. If so authorized, Lessor’s cancellation of any Order is subject to Lessor’s then current Order cancellation policy and a restocking charge of twenty-five percent (25%) of the Order price, with a minimum of fifty dollars ($50). Rental orders that are canceled less than 12 hours prior to shipment or pick up will be charged one day’s rental rate as a cancellation fee. Credit will not be issued on goods returned without Lessor’s consent. It is required that Goods are suitably packed, fully insured, and
transportation and insurance prepaid in accordance with instructions issued by Lessor. Lessee agrees to return allGoods to the location from which such Goods were picked up or shipped from or as otherwise instructed by Lessor. Lessee shall at its own cost return the Goods to Lessor’s premises during Lessor’s regular business hours in as good a working condition and state of repair as when delivered, subject to reasonable wear and use. Any Goods returned to Lessor without freight prepaid will be billed to Lessee at cost plus 10%, or $25.00, whichever is greater. Merchandise stamped, etched, or altered in any manner from the state in which it was received will not be accepted for return. All credits will be applied to future purchases.
TERMINATION FOR DEFAULT: In the event that a Party (the “Breaching Party”) is in breach of a material provision of Lessee’s Order, the other Party (the “Non-Breaching Party”) shall submit a written cure notice to the Breaching Party advising of such breach. Except in the case of amounts due Lessor from Lessee, which shall be paid immediately upon Buyer’s receipt of the notice, the Breaching Party shall have thirty (30) days from receipt of such notice to cure the breach. If the Breaching Party does not cure the breach within the thirty (30) day cure period, the Non-Breaching Party may terminate Lessee’s Order for default. Either Party may immediately terminate Lessee’s Order if the other Party is adjudicated bankrupt, files a petition for bankruptcy, makes an assignment for the benefit of creditors, or if an action under any law for the relief of debtors is taken. In the event of Lessee’s default or breach of any term or condition of this agreement, Lessor may terminate this agreement and declare the entire unpaid balance immediately due and payable, and in addition to any remedy provided by law, at Lessor’s request Lessee shall immediately: (a) return the Goods to Lessor as provided herein; or (b) permit Lessor to enter upon Lessee’s premises and remove the Goods at Lessee’s expense.
CONSUMABLES, TOOLING and TOOL BIT RESHARPENING: This policy covers consumables manufactured by Lessor. Tool bits and inserts are to be considered consumable items and are required to be purchased. Lessor may at its sole discretion, accept unused standard tool bits from Lessee for full credit. Non-standard tooling is purchased at a minimum of 5 each. Nonstandard tool bits or used tooling cannot be returned for credit. Lessee is required to check all tool bits prior to returning and ensure they are packaged well for shipment. Within two working days of receipt, the tool bits are evaluated and Lessee is contacted for authorization with the price and scheduled return shipment date. The price structure is available from the Lessor’s sales coordinator. Lessor cannot resharpen
badly gouged, chipped, or broken tool bits. Lessor will return tool bits that are not suitable for resharpening with the tool bits that were resharpened, unless Lessor is instructed otherwise. Lessee is responsible for all shipping charges to and from Seller.
USAGE CLAIMS AND REMEDIES: Lessee represents and declares the understanding of the properties and operation of the Goods, which only qualified operators will operate the Goods and that such operators are experienced and knowledgeable of the processes, procedures and techniques necessary to use the Goods in a safe and workmanlike manner. Lessor is relying on Lessee’s representation. The Goods are and at all times shall remain, personal property. Lessee shall not permit any part of it to become affixed or in any manner situated to, or imbedded in, or permanently on real property or improvements. Lessee must promptly notify Lessor in writing of any defective Good no later than 6 hours after receipt of the defect. Lessor, at its reasonable discretion, may accept claims
submitted up to 12 hours after receipt of the defect provided that Lessee provides Lessor with credible and persuasive documentary evidence that the defect was discovered during the period of first use. Lessee’s notice of a defective Goods must identify the specific Goods affected, and the nature of the defect. Lessor, at its sole option, will either repair or replace any Goods authorized for return to Lessee. Such repair, replacement, or credit shall be Lessor’s sole remedy for defective Goods. Lessee must promptly provide Lessor with all information requested regarding the identified defect. Under no circumstances is Lessor liable for recall, retrieval, removal, dismantling, re-installation, redeployment, or re-commissioning of any defective Goods or any costs associated therewith. Lessee also agrees to pay a reasonable cleaning or decontamination charge for Goods returned dirty or contaminated. Accrued rental charges cannot be applied against the purchase or cost of repair or decontamination of damaged, contaminated or lost Goods; rental charges for the Goods will continue until written notification of loss
is received at Lessor’s premises. Goods lost, damaged or contaminated beyond repair will be paid for by Lessee at its replacement cost. The cost of repairs or decontamination will be borne by Lessee, whether performed by Lessor, or, at Lessor’s option, by others. Any mechanical or electrical failures of Goods occurring after the Goods have been accepted by Lessee must be reported to Lessor at once and the Good not used by Lessee until such repairs are made. Lessee understands and agrees that any mechanical or electrical adjustments or repairs by Lessee are prohibited. In case of such failure, Lessee shall return the Goods to Lessor’s premises at Lessee’s expense.
WARRANTY INFORMATION: THERE IS NO WARRANTY THAT THE GOODS ARE FIT FOR A PARTICULAR PURPOSE, NOR DOES LESSOR MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, THAT EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF OR TO ANYONE OTHER THAN LESSEE. ALL USED, REPAIRED, MODIFIED OR ALTERED ITEMS ARE PURCHASED AS-IS AND WITH ALL FAULTS. LESSOR SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND LESSEE’S SOLE AND EXCLUSIVE REMEDY SHALL BE THE RETURN OR REPLACEMENT OF THE GOODS AND REFUND OF THE CHARGES PAID FOR TIME WHEN INOPERABLE.
PROPRIETARY RIGHTS: Lessor shall retain all right, title, and interest in and to any data, information, software, tools, specifications, templates, scripts, ideas, concepts, inventions, works of authorship, products, know-how, processes, techniques, and the like used or developed by Seller, its employees, and its subcontractors in connection with Lessee’s Order. Lessee agrees that Lessor retains all proprietary rights in and to all products, specifications, designs,
discoveries, inventions, patents, copyrights, trademarks, trade secrets, and other proprietary rights relating to Goods or Services. Lessee shall not copy or reverse engineer, or cause or enable any third party to copy or reverse engineer, any Goods. Unless otherwise identified in writing to Lessor, no information or knowledge heretofore or hereafter disclosed to Lessor in the performance of, or in connection with, the terms hereof, shall be deemed to be
confidential or proprietary and any such information or knowledge shall be free from restrictions, other than a claim for patent infringement, as part of the consideration hereof.
PATENT, COPYRIGHT, AND TRADEMARK INDEMNIFICATION: Lessor shall hold harmless and indemnify Lessee against all third party claims, judgments, costs, and fees, including attorney fees, relating to infringement of any patent, copyright, trademark, or design to the extent that (i) the infringing Goods are manufactured, sold, or used, in whole or in part, pursuant to Lessor’s specifications, designs, drawings, or other technical data, and (ii) provided that Lessee
notifies Lessor in writing of any such claim as soon as reasonably practicable, and allows Lessor to control, and reasonably cooperates with Lessor in, the defense of any such claim and related settlement negotiations and has in no way acted to the prejudice of the Lessor’s ability to control and defend such claims. To the extent that any Goods are held by a court of competent jurisdiction or are believed by Lessor to infringe or otherwise violate a third party’s proprietary rights, Lessor may, at its option and expense, either (i) modify the affected Goods to be noninfringing; or (ii) obtain for Lessee a license to continue using such Goods on substantially the same terms set forth herein; or (iii) if neither of the foregoing alternatives are reasonably available to Lessor, Lessor may require Lessee to return the infringing Goods and all rights thereto, and refund to Lessee the price paid to Lessor by Lessee for the infringing Goods. Lessor shall have no obligation under this provision to the extent any claim is based on (i) modifications of Goods or deliverables by a party other than Lessor or Lessee’s authorized representative; (ii) the combination, operation, or use of Goods with devices, software, or data not supplied by Lessor; (iii) the use or installation of Goods in an environment for which Goods were not intended; (iv) Lessee’s failure to use updated or modified versions of Goods provided by Lessor; or (v) the negligent acts or omissions or willful misconduct of Lessee, its employees, representatives, or affiliates. This Section, and the indemnification provided herein, does not apply to any Goods manufactured, sold, or used, in whole or in part, pursuant to Lessee’s specifications, designs, drawings, or other technical data. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SELLER AND LESSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF ANY THIRDPARTY INTELLECTUAL PROPERTY RIGHTS.
CONFIDENTIALITY: Lessee shall keep confidential and not directly or indirectly disclose to any third party any Confidential Information of Lessor, as defined herein, without Lessor’s prior written consent. “Confidential Information” includes, but is not limited to, business, financial, statistical, and commercial information, pricing, technical data and information, formulas, analyses, trade secrets, ideas, methods, processes, know how, software, designs, data sheets, schematics, configurations, and drawings. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by Lessee; (ii) is or becomes available to Lessee on a non-confidential basis from a source other than Lessor when such source is not, to the best of Lessee’s knowledge, subject to any confidentiality obligation with Lessor; or (iii) was independently developed by Lessee without reference to Lessor’s Confidential Information, and Lessor can verify development of such information by written documentation.
INDEMNITY: Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party, its officers, directors, and employees (the “Indemnified Party”) from and against any and all liabilities, losses, expenses, liens, claims, demands, and causes of action (“Claims”) for death, personal injury, or property damage arising out of any negligent act or omission of the Indemnifying Party in the performance of Lessee’s Order, except to the extent such Claims are contributed to by (i) the negligence or willful misconduct of the Indemnified Party or (ii) the negligence or willful misconduct of any third parties. Lessee agrees to indemnify, defend, and hold harmless Lessor, its officers, directors, and employees for any and all Claims, including Claims asserted by third parties, related
to, or resulting from the Goods, including without limitation the manufacture, selection, delivery, possession, use, operation or return of the Goods, whether or not they arise out of Lessor’s negligence. Lessee further agrees to indemnify, any Goods manufactured or Services performed in whole or in part to Lessee’s designs or attributed to the Goods, information, or materials furnished by Lessee to Lessor. The Indemnified Party agrees to (i) notify theIndemnifying Party in writing of any Claims as soon as reasonably practicable; (ii) allow the Indemnifying Party tocontrol the defense of any such Claim and related settlement negotiations; and (iii) reasonably cooperate with the Indemnifying Party in such defense.
LIABILITY: Lessee shall be liable for all damage to the Goods arising from any use, misuse or negligence of Lessor or from any accident however arising. Lessee shall possess and operate the Goods in strict conformity with all applicable laws and regulations. Lessee covenants and agrees to indemnify and hold Lessor harmless and free from any and all claims, loss, damage or liability (including attorney’s fees) arising out of the use, maintenance and return of the Goods, including without limitation any harm to third persons and/or their property caused by the negligence of Lessee in possessing or operating the Goods. Notwithstanding any other provision herein, under no circumstances shall Lessor be liable to Lessee or any third party for any consequential, special, incidental, indirect, multiple, administrative, or punitive damages, or any damage of an indirect or consequential nature arising out of or related to Lessor’s performance under Lessee’s Order, including, without limitation, loss of use, loss of revenues, loss of anticipated profits, and cost of capital, whether based upon breach of Lessor’s Order, warranty, negligence, or any other type of claim, and whether grounded in tort, contract, civil law, or other theories of liability, including strict
liability, even if advised in advance of the possibility of such damages.
LAWFUL USE OF GOODS: Lessee warrants and represents that all Goods or Services purchased by Lessee from Lessor shall be used only for or in connection with lawful purposes and that such use shall strictly comply with all applicable laws and regulations, including the laws and regulations of the jurisdictions in which the Goods are purchased, resold, integrated, or used.
ORDER OF PRECEDENCE: Any inconsistency between Lessor’s terms and conditions, Lessee’s Order, or any other documents related thereto, shall be resolved by giving precedence in the following order: (i) Lessor’s Special Terms and Conditions (if applicable); (ii) Lessor’s General Terms and Conditions of Sale; (iii) Lessor’s specifications (if applicable); (iv) statement of work or scope of services (if applicable); (v) Lessor’s written acknowledgement of Lessee’s Order; (vi) Lessor’s Offer; and (vii) form of Lessee’s Order.
GOVERNING LAW AND VENUE: This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without reference to the choice of law principals thereof. The parties hereto irrevocably submit to the jurisdiction of the Courts of the State of California, U.S.A., located in Sacramento County and the United States District Court of California in any action arising out of or relating to this Agreement, and hereby irrevocably agree that all claims in respect of such action may be heard and determined in such state or federal court. The parties hereto irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties further agree, to the extent permitted by law, that final and unappealable judgment against any of them in any action or proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment, a certified copy of which shall be conclusive evidence of the fact and amount of such judgment.
DISPUTES AND ARBITRATION: The Parties shall attempt to resolve any dispute, controversy, or claim arising under or relating to Lessee’s Order, including their interpretation, performance, or termination. If the Parties are unable to resolve such dispute, the claims arising under or relating to this Agreement may be settled
by binding arbitration in the State of California. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in machinery manufacturing and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent
SUBLETTING: NO PART OF THE GOODS SHALL BE SUBLET, TRANSFERRED OR ASSIGNED BY LESSEE OR REMOVED FROM THE LOCATION AT WHICH IT WAS INTENDED BY LESSOR TO BE USED, AS REPRESENTED BY LESSEE EXCEPT WITH THE PRIOR WRITTEN CONSENT OF LESSOR.
ASSIGNMENT: NEITHER PARTY MAY ASSIGN, DELEGATE, SUBLICENSE, OR TRANSFER, WHETHER BY OPERATION OF LAW OR OTHERWISE, THEIR OBLIGATIONS OR RIGHTS HEREUNDER WITHOUT THE OTHER PARTY’S WRITTEN CONSENT AND ANY ASSIGNMENT, DELEGATION, SUBLICENSE, OR TRANSFER WITHOUT SUCH WRITTEN CONSENT IS VOID AND OF NO EFFECT. If consent is given, the obligations and liabilities of Lessee’s Order shall be binding upon and inure to the benefit of the successors and assigns of the Parties. Notwithstanding this provision, Lessor may subcontract work to be performed under Lessee’s Order to third parties or assign Lessee’s Order to a parent, subsidiary, or affiliate company of Seller. In addition, without securing such prior consent, Lessor shall have the right to assign Lessee’s Order to any successor, by way of merger, consolidation, or the acquisition of substantially all of the business and assets of Lessor relating to the subject matter of Lessee’s Order; provided, however, that such successor shall expressly assume all of the assignor’s obligations and liabilities under Lessee’s Order.
WAIVER; REMEDIES; COSTS: None of the Sections, terms, conditions, or provisions herein shall be waived by any act or knowledge on the part of Lessor, except by written instrument signed by a duly authorized representative of Lessor. The waiver by Lessor of any term, condition, provision, or right hereunder or the failure to enforce at any time any of Lessor’s terms and conditions, or any rights with respect thereto, is not a continuing waiver or a waiver of any other rights, or of any material breach or failure of performance of Lessee. The remedies herein reserved or created for Lessor shall be cumulative, and additional to any other or further remedies provided at law or in equity. Lessor may remedy any breach of the terms or conditions hereof without waiving the breach remedied, or without waiving any other prior or subsequent breach. Lessee shall pay all Seller’s costs and expenses, including attorney’s fees, incurred by Lessor in exercising any of its rights or remedies hereunder or enforcing any of the terms or conditions hereof.
SEVERABILITY: If any term, condition, or provision herein is invalid, ineffective, or unenforceable under present or future laws, then the remainder of the terms, conditions, and provisions shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated.
ACCIDENT, NOTICE AND INSPECTION: In the event the Goods are involved in an accident resulting in personal injury, Lessee shall notify Lessor of the particulars as soon as the injured person has been provided for, but in no event more than four hours after the accident. Lessee shall maintain the Goods and preserve the site of the accident until Lessor’s representative has inspected the site, which inspection shall be conducted promptly after notification. Lessee shall cooperate with Lessor’s representative and shall provide access to such places, persons and reports as lessor’s representative may reasonably request in the conduct of its investigation.
PURCHASE OPTION: The parties shall agree if Lessee is to have an option to purchase any Goods at any time during the rental period. If Lessee so elects to purchase Goods, Lessor will apply a percentage of the preceding lease payments towards the purchase of the Goods as follows:
If purchased: Percentage of previous month’s rental payment applied to purchase price:
0-30 days after start of rental 100%
31-60 days after start of rental 70%
61-90 days after start of rental 60%
91 or more days after start of rental 50%
Provided, however, that in no event shall such rental credit exceed 50% of the list or replacement purchase price of