APPLICABILITY; ACCEPTANCE

a. These Terms and Conditions of Sale (“Terms”) apply to all orders for equipment, goods and other products (“Products”) and services sold and furnished by United Truck and Equipment, Inc. dba UnitedBuilt Equipment, Inc. (“UnitedBuilt”) and purchased by Buyer (“Buyer”), as identified in any contract, credit application, proposal, order acknowledgement, or invoice (the “Sales Confirmation”).These Terms and the Sales Confirmation comprise the entire agreement (collectively, the “Agreement”) between UnitedBuilt and Buyer (collectively, the “Parties” and individually, a “Party”), except as hereafter modified by UnitedBuilt in writing and signed by UnitedBuilt’s representative (including any applicable dealer, reseller, distributor, sales representative, or similar agreement between Buyer and UnitedBuilt) (a “Superseding Agreement”). Buyer accepts these Terms by signing and returning UnitedBuilt’s quotation, by sending a purchase order in response to the quotation, by submitting instructions to UnitedBuilt to ship the Product or by accepting or paying for the Product or Service. An order by Buyer shall only be deemed placed when the order has been accepted and signed by both Buyer and UnitedBuilt. The acceptance by UnitedBuilt of any order by Buyer is expressly conditioned upon Buyer’s acceptance of these Terms. No additional or different terms, conditions or warranties other than those identified in the quotation and no agreement or understanding, oral or written, in any way purporting to modify the terms and conditions, whether contained in Buyer's purchase order or shipping release forms, or elsewhere, shall be binding on UnitedBuilt unless hereafter made in writing, signed by UnitedBuilt's authorized representative, and specifically referencing these Terms and stating that it modifies them. Buyer is hereby notified of UnitedBuilt’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither UnitedBuilt's subsequent lack of objection to any terms, nor the delivery of the products or services, shall constitute an agreement by UnitedBuilt to any such terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.

 

PRICE; PAYMENT

a. Prices for Products covered by this Agreement may be adjusted by UnitedBuilt, upon notice to Buyer at any time prior to shipment and regardless of the acceptance or issuance of a Sales Confirmation, to reflect any increase in UnitedBuilt’s cost of raw materials, components (e.g., steel, aluminum, electronic components), inability to secure Products, changes in law, labor, taxes, duties, tariffs or quotas, acts of Government, any similar charges, or to cover any extra, unforeseen and unusual cost elements.

b. All stated prices exclude any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these Terms (collectively, “Taxes”). Any Taxes related to the Products and Services purchased pursuant to these Terms are the responsibility of Buyer unless Buyer presents an exemption certificate acceptable to UnitedBuilt and the applicable taxing authorities. If possible, UnitedBuilt will bill Taxes as a separate item on the invoice presented to Buyer. In the event UnitedBuilt is required to pay any such taxes or other charges, Buyer shall immediately reimburse UnitedBuilt therefor on demand. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will immediately pay UnitedBuilt the amount of the Tax and any penalties and interest related thereto.

c. All payment terms set forth in these Terms are subject to UnitedBuilt’s approval of Buyer’s credit, in UnitedBuilt’s discretion; if such approval is withheld, payment will be due in advance of UnitedBuilt’s performance on the date set forth in the Sales Confirmation. Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from the applicable due date until paid, plus UnitedBuilt’s reasonable costs of collection. UnitedBuilt reserves all other rights granted to UnitedBuilt under the Uniform Commercial Code (“UCC”) (or equivalent law in the applicable jurisdiction) for Buyer’s failure to pay for the Products, Services or any other breach by Buyer of these Terms. In addition to all other rights and remedies available to UnitedBuilt (which UnitedBuilt does not waive by the exercise of any rights hereunder), UnitedBuilt may suspend the delivery of any Products or Services if Buyer fails to pay any amounts by the applicable due date and the failure continues for five (5) days following Buyer’s receipt of notice thereof. Buyer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with UnitedBuilt, regardless of whether relating to UnitedBuilt’s breach, bankruptcy, or otherwise. All purchases and related payments will be in US Dollars unless otherwise stated on the applicable Product or Service price list or Sales Confirmation. Invoicing disputes must be identified in writing within 21 days of the date of invoice. Payments of any disputed amounts are due and payable upon resolution. The Parties shall seek to resolve any such disputes expeditiously and in good faith within 21 days of the dispute notice. All other amounts remain due within 30 days.

d. In the event of Buyer’s failure to pay for the Products, Services or any other breach by Buyer of these Terms, and in addition to all other rights and remedies available to UnitedBuilt (which UnitedBuilt does not waive by the exercise of any rights hereunder), Buyer shall indemnify and hold UnitedBuilt harmless from and against any loss, damage, liability, cost and expense incurred by UnitedBuilt in connection with the order; and UnitedBuilt, at its option, may resell the items contained in the order and retain that portion of Buyer’s deposit which is equal to (i) the difference between Buyer’s purchase price less UnitedBuilt’s final disposition price, plus (ii) UnitedBuilt’s costs of sale, including without limitation, any other general and incidental damages incurred by UnitedBuilt, with the balance of Buyer’s deposit, if any, returned to Buyer.

e. Buyer’s entitlement to receive any rebate or other incentive that UnitedBuilt may offer from time to time shall be conditioned on Buyer timely paying all invoices and other amounts owed by Buyer to UnitedBuilt during the period to which the rebate or other incentive relates. In the event that Buyer provides a payment without designating the invoice(s) to which such payment is to be applied, UnitedBuilt may apply such payment to such invoice(s) or other amounts owing by Buyer to UnitedBuilt as UnitedBuilt may determine in its sole discretion. f. In the event that Buyer does not use any portion of a credit (including any rebate credit) within ninety (90) days of its issue date, then UnitedBuilt shall be entitled to apply such credit against any invoice(s) or other amounts owing by Buyer to UnitedBuilt. All credits (including rebate credits) shall expire if not used within one hundred eighty (180) days of the credit issue date.

 

DELIVERY; SHIPPING

a. UnitedBuilt will deliver or make available the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by UnitedBuilt for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes UnitedBuilt to delay shipment or completion of the Products, UnitedBuilt will be entitled to any and all extra costs and expenses resulting from the delay. UnitedBuilt will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on UnitedBuilt’s part. UnitedBuilt will use commercially reasonable efforts to make shipments as scheduled.

b. Unless otherwise agreed in the Sales Confirmation or otherwise agreed in writing by the Parties, UnitedBuilt will make the Products available for pick up at UnitedBuilt’s plant or factory (the “Delivery Location”), using UnitedBuilt’s standard methods for packaging and shipping same. Buyer will take delivery of the Products within three (3) days of UnitedBuilt’s notice that the Products have been delivered to the Delivery Location. If Buyer fails to take delivery of the Products within this three (3) day period, Buyer will pay UnitedBuilt for the Products and all storage expenses incurred by UnitedBuilt or, in UnitedBuilt’s discretion, UnitedBuilt may ship the Products to Buyer at Buyer’s expense. UnitedBuilt may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer's purchase order. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense and will provide the licenses and consents to UnitedBuilt before shipment. Claims for loss or damage to Products in transit must be made to the carrier, unless shipping was prepaid to UnitedBuilt by the Buyer.

c. The quantity of any installment of the Products, as recorded by UnitedBuilt on the dispatch from UnitedBuilt’s place of business, is conclusive evidence of the quantity received by Buyer upon delivery, unless Buyer provides conclusive evidence to the contrary. UnitedBuilt will not be liable for any non-delivery of the Products to the Delivery Location, unless Buyer gives written notice to UnitedBuilt of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. UnitedBuilt’s liability for any non-delivery of the Products will be limited to replacing the Products within a reasonable time or adjusting the invoice for the Products to reflect the actual quantity delivered, at UnitedBuilt’s option.

d. If the Products ordered are to be exported from the United States (US), the quoted shipping dates are subject to all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated in writing. Buyer agrees to provide UnitedBuilt in writing with the ultimate destination, end-use and identity of the end-user at the time the order is placed if the Products are to be exported. UnitedBuilt reserves the right to choose the freight forwarder, carrier, and/or broker. Buyer acknowledges and agrees that it shall be responsible for compliance with any chemical registration or importation requirements of any country into which it seeks to import the Products. The Buyer of items is solely responsible for complying with applicable US export laws. UnitedBuilt shall not be the importer of record and is not responsible for compliance with importation requirements of any country to which the Products are shipped.

 

TITLE; RISK OF LOSS

a. Risk of loss or damage passes to Buyer upon delivery to the carrier. If Buyer fails to accept delivery of any of the Products on the date set forth in UnitedBuilt’s notice that UnitedBuilt has delivered the Products to the Delivery Location, or if UnitedBuilt is unable to deliver the Products to the Delivery Location on the date because Buyer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) the Products will be deemed to have been delivered to Buyer; and (ii) UnitedBuilt, at its option, (A) may store the Products until Buyer takes possession of them, at which time Buyer will be liable for all costs and expenses resulting therefrom (including but not limited to the cost of storage and insurance), or (B) ship the Products to Buyer, at Buyer’s cost and expense.

b. Title to Equipment manufactured by a third party passes to Buyer upon delivery of Equipment to the Delivery Location. Unless Buyer has prepaid for the Equipment, the Equipment in Buyer’s inventory shall be subject to a security interest of UnitedBuilt in the Equipment until UnitedBuilt receives full payment from Buyer. UnitedBuilt may, in its reasonable discretion, register such security interest in Equipment and their sale proceeds pending payment in the applicable official registers of any national or local jurisdiction where Equipment is delivered or physically located. Promptly upon UnitedBuilt’s request, Buyer shall execute all documents and take all actions as UnitedBuilt reasonably directs at UnitedBuilt’s expense to enable UnitedBuilt to exercise its security rights under this Section.

 

INSPECTION; REJECTION OF PRODUCTS, RETURNS

a. As used in this Section, “Nonconforming Products” means only the following: (i) the Products shipped are different from those identified in Buyer’s purchase order; or (ii) the labels or packaging of the Products incorrectly identifies them. Buyer will inspect the Products within (7) days following receipt thereof (the “Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies UnitedBuilt in writing, via certified mail, of any Nonconforming Products and furnishes UnitedBuilt with a written description of all defects and written evidence or other documentation reasonably required by UnitedBuilt.

b. If Buyer notifies UnitedBuilt of any Nonconforming Products prior to the expiration of the Inspection Period, then UnitedBuilt will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At UnitedBuilt’s request and direction, Buyer will return the Nonconforming Products at UnitedBuilt’s expense or dispose of the Nonconforming Products in a manner approved by UnitedBuilt, and upon request, Buyer shall provide UnitedBuilt with a certificate of destruction of such Nonconforming Products. Upon receipt of the Nonconforming Products, UnitedBuilt will promptly refund the monies owed or ship the replacement Products to the Delivery Location at UnitedBuilt’s expense, with UnitedBuilt retaining the risk of loss until delivery. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies and UnitedBuilt’s sole liability for the delivery of Nonconforming Products.

c. No good may be returned to UnitedBuilt without receipt of UnitedBuilt’s written Returned Goods Authorization (RGA) issued by UnitedBuilt. Requests for discretionary or non-warranty returns of stock inventory must be received by UnitedBuilt within thirty (30) days of the original invoice and are subject to restocking fees which may vary by item or line. Special orders of non-stock inventory are non-returnable. All returned products must be received by UnitedBuilt without damage, and credits, if due, will be issued by UnitedBuilt based upon the condition of the returned inventory, and upon the lesser of purchase price or current selling price.

d. Claims for factory damage or shortages shall not be considered unless made in writing within ten (10) days after receipt of the goods and accompanied by reference to our bill of lading and invoice numbers. Defective Products shall be held for UnitedBuilt’s inspection and/or disposition.

 

LIMITED WARRANTY

a. Tank Warranty: UnitedBuilt confidently warrants its manufactured tanks against defects in workmanship for a period of (5) years. Other Equipment such as water pumps, spray heads, etc. and all optional equipment not part of the manufacture of the water tank, including paint and powder coating, are covered by UnitedBuilt’s general limited warranty for a period of one (1) year. UnitedBuilt’s Warranty begins at the time the tank ships from our facility or if being shipped as a kit tank from the time the tank is installed or no later than 6 months from the date of shipment, unless agreed to in writing. This warranty becomes null and void when the product is disassembled, welded upon, or in any way altered without prior written approval from UnitedBuilt.

b. Other Equipment: UnitedBuilt warrants that all other Equipment will be free from defects in material and workmanship for one (1) year from the original date of purchase (“Warranty Period”), unless otherwise specified by UnitedBuilt in separate written product warranty accompanying the Equipment or specified in the applicable Equipment price list (in which case such other product warranty term shall control). If, prior to the expiration of the Warranty Period, Equipment fails to conform to this Limited Warranty and Buyer informs UnitedBuilt in writing of such nonconformance, then UnitedBuilt will either (i) repair or replace the defective Equipment or (ii) in UnitedBuilt’s sole and exclusive discretion, refund the amount that Buyer paid for such defective Equipment at time of original purchase. Repair or replacement may be made with new or refurbished Equipment or component parts (at UnitedBuilt’s option) or, if UnitedBuilt no longer sells the applicable Equipment, with a similar Equipment of like function. Buyer shall bear the costs of access, de-installation, reinstallation and transportation of the Equipment to UnitedBuilt and back to Buyer. Any repair or replacement pursuant to this Limited Warranty shall not extend the Warranty Period.

c. Conditions to Limited Warranty: This Limited Warranty and remedy are expressly conditioned upon: (i) Buyer’s proof of payment of the purchase price in full; and (ii) Buyer giving written notice of the defect, reasonably described, to UnitedBuilt within ten (10) days of the time when Buyer discovers or ought to have discovered the defect.

d. What This Limited Warranty Does Not Cover: (i) consumable Equipment and components (e.g., batteries, filters, belts and kits); (ii) Failure or damage caused by misapplication, lack of proper maintenance, abuse, improper installation, or abnormal conditions of temperature, moisture, or dirt or exposure to corrosive matter; and (iii) Equipment that is a component part not manufactured by UnitedBuilt. Other Equipment may be covered by warranties by other manufacturers, suppliers, or publishers, which UnitedBuilt may assign or pass through to Buyer, without recourse to UnitedBuilt, to the extent allowable by the other manufacturers, suppliers or publishers.

e. Excluding expenses: Travel mileage, travel labor, related travel expenses (such as meals or lodging) and rental equipment will not be covered.

f. The limited remedies described herein are the sole and exclusive remedy and UnitedBuilt’s sole responsibility under this Limited Warranty.

 

INTELLECTUAL PROPERTY

a. Buyer acknowledges UnitedBuilt and its affiliates are the owners or licensors of brands, trademarks, designs, patents, copyrights and other intellectual property relating to UnitedBuilt’s Products, and that no right or license is conveyed by UnitedBuilt to Buyer to manufacture, have manufactured, modify, import or copy such Products. Buyer agrees that it will reference brands of UnitedBuilt or its affiliates only in connection with the use or sale of Products delivered to Buyer hereunder, and not in connection with the sale of any other Product, except as separately authorized by UnitedBuilt in writing.

 

DATA, DATA ACCESS AND CYBERSECURITY (PRIVACY POLICY)

a. Buyer acknowledges and agrees to the collection, processing and international transfer of Buyer’s personal data and information related to the business relationship between Buyer and UnitedBuilt (“Data”) for its general business purposes, including but not limited to providing Buyer with service/product recommendations, benchmarking, energy monitoring, maintenance and support, and marketing to Buyer (collectively, “Business Purposes”). UnitedBuilt shall be the exclusive owner of all Data and shall have the right and ability to use the Data for its Business Purposes.

 

INDEMNIFICATION

a. Buyer shall indemnify, defend and hold harmless UnitedBuilt and its related parent, subsidiary and affiliated companies, successors and assigns, and each of their respective officers, directors and employees, from and against any and all claims, losses, damages, costs, and expenses (including attorney's fees and amounts paid in settlement in good faith) which may be suffered or incurred by any of them as a result of any claim, demand, suit, proceeding or cause of action arising in any manner from: (i) any acts or omissions by Buyer or its representative, arising out of or relating to Buyer's purchase, handling, transportation, export, re-export, re-transfer, import, possession, use, demonstration, marketing, sale, disposition, distribution or maintenance of Products; (ii) any statements, representations (whether oral, written, express or implied), suppression of information, or failure to disclose information of any kind by Buyer or its representative with respect to Products or Services different or in addition to the applicable Product or Service warranty provided by UnitedBuilt; (iii) sales by Buyer to installers that Buyer knows or has reason to know are non- qualified, are routine violators of energy or building codes and standards, or have made hazardous installations of similar products;(iv) the improper use or disclosure of UnitedBuilt's intellectual property, including trademarks, patents, copyrights and proprietary marketing and business systems information; (v) any intentional misconduct or negligent act or omission of Buyer, its employees, or its agents; (vi) any contractual obligation assumed by Buyer toward a third-party; (vii) any misuse or modification of Products by Buyer or its employees or agents; (viii) any and all damages or injury of any kind or nature whatsoever (including, but without limitation, personal injury and death) to all property and persons caused by, resulting from, arising out of or occurring in connection with the Buyer's sale, installation or use of goods sold or supplied by UnitedBuilt and not caused by the negligence of UnitedBuilt, its employees or agents, or arising out of defects in any such goods, and/or (ix) Buyer's failure to comply with any law applicable to these Terms or the performance of Buyer's obligations hereunder.

 

EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY

a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS STATED IN THE FOREGOING LIMITED WARRANTY OR OTHER WARRANTY APPLICABLE TO THE EQUIPMENT, UNITEDBUILT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS (INCLUDING OTHER PRODUCTS) AND SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND UNITEDBUILT DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. UNITEDBUILT NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON PURPORTING TO ACT ON ITS BEHALF TO MODIFY OR TO CHANGE ANY WARRANTY APPLICABLE TO A PRODUCT OR SERVICE, NOR TO ASSUME FOR IT ANY OTHER WARRANTY OR LIABILITY CONCERNING ANY PRODUCT OR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS AND LIMITATIONS. IN SUCH AN EVENT, SUCH EXCLUSION AND LIMITATION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW, AND THE DURATION OF ANY IMPLIED WARRANTIES WILL BE LIMITED TO THE DURATION OF THE FOREGOING LIMITED WARRANTY.

b. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL UNITEDBUILT OR ITS AGENTS OR AFFILIATES BE LIABLE, WHATEVER THE LEGAL BASIS FOR THE CLAIM, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, LIQUIDATED OR PUNITIVE DAMAGES OR FOR ANY DAMAGES FOR LOSS OF BUSINESS, LOSS OF USE, LOSS OF REVENUE OR PROFITS, LOSS ARISING FROM DELAYS, LOSS OF DATA AND OTHER LOSSES ARISING OUT OF, BASED ON, OR RESULTING FROM THESE TERMS OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE PRODUCTS, EVEN IF UNITEDBUILT (OR ITS AGENTS OR AFFILIATES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE SOUGHT FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR STRICT LIABILITY IN TORT OR UNDER ANY OTHER LEGAL THEORY.

c. IN NO EVENT SHALL UNITEDBUILT AND ITS AFFILIATES AND THEIR RESPECTIVE PERSONNEL, SUPPLIERS AND VENDORS AGGREGATE LIABILITY UNDER THESE TERMS OR OTHERWISE WITH RESPECT TO THE SPECIFIC PRODUCTS AND SERVICES PURCHASED HEREUNDER EXCEED THE AMOUNTS PAID TO UNITEDBUILT BY BUYER FOR THE PRODUCTS OR SERVICES GIVING RISE TO SUCH LIABILITY, REGARDLESS OF THE CAUSE OR FAULT AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

d. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

 

CHANGES; PRODUCT RECALL

a. UnitedBuilt reserves the right to alter, modify, redesign or discontinue the Products or any components of Products and change its service, warranty, support or other policies, without notice and without any obligation to Buyer.

b. In the event of a Product recall, Buyer shall immediately cease using the Product upon receipt of notice from UnitedBuilt. Buyer’s sole obligation in the event of a recall of any Equipment shall be to repair or replace such Equipment. For Third Party Products, UnitedBuilt will pass through to Buyer any remedies available in the event of a recall of a Third Party Product. The foregoing shall be UnitedBuilt’s sole and exclusive remedies with respect to any Product recall issue.

 

NO LICENSE

a. Except as provided in subsection (b), the sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by UnitedBuilt, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to UnitedBuilt, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without UnitedBuilt’s prior written consent, use any trademark or trade name of UnitedBuilt in connection with any of the Products, other than with respect to the resale of the Products pre-marked or packaged by or on behalf of UnitedBuilt.

 

CANCELLATION AND TERMINATION

a. No order may be cancelled and no Products may be returned without prior written approval of UnitedBuilt. Orders placed with and accepted by UnitedBuilt may not be canceled except with UnitedBuilt’s written consent prior to shipment and Buyer’s acceptance of UnitedBuilt’s Cancellation Charges, which shall protect UnitedBuilt against all costs and losses. UnitedBuilt reserves the right to cancel any sale hereunder prior to delivery in UnitedBuilt’s sole discretion without liability to Buyer (except for refund of monies already paid).

b. For purposes of this Section, the term “Cancellation Charges” includes, but is not limited to, (1) the cost, including installation and removal costs, of any equipment purchased by UnitedBuilt prior to cancellation for the purpose of filling Buyer's order; b) the quoted price for all goods finished and ready to ship; and c) other reasonable costs (including but not limited to the cost of raw materials and goods still in the process of manufacture but unfinished at the time of cancellation) which UnitedBuilt may have incurred in the performance of the order.

c. If UnitedBuilt is unable to procure components of the Products that are manufactured by others by reason of the manufacture’s change in price or design or for any other reason outside the control of UnitedBuilt, UnitedBuilt shall immediately notify Buyer and within five (5) days after the delivery of such notice, and as their only legal or equitable remedy, Buyer may cancel the order by providing written notice to UnitedBuilt, provided such Party is not in default hereunder. In the event of such cancellation, UnitedBuilt shall return to Buyer any funds delivered to UnitedBuilt by Buyer for the order. In no event shall UnitedBuilt be liable for the costs of procurement of substitute goods by Buyer or be liable for any special, consequential, or incidental damages, however caused, including but limited to, any lost profits, whether for breach of warranty, breach of contract, breach of these terms, negligence, or strict liability in tort or under any other legal theory.

d. In addition to any other remedies that UnitedBuilt may have, UnitedBuilt may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; 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. In addition, UnitedBuilt may terminate these Terms without cause on ninety (90) days prior written notice to Buyer.

 

CONFIDENTIALITY

a. All non-public, confidential, or proprietary information of UnitedBuilt, including but not limited to trade secrets, intellectual property, business information, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, rebates, trade secrets, that is disclosed by or on behalf of UnitedBuilt to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with these Terms is strictly confidential, is provided solely for the use of performing these Terms, and may not be disclosed to any person, corporate division or entity, or copied, unless authorized in advance by UnitedBuilt in writing. Upon UnitedBuilt's request, Buyer will promptly return all documents and other materials received from UnitedBuilt. UnitedBuilt will be entitled to injunctive relief for any violation of this Section, without having to post bond or establish the insufficiency of a remedy at law. This Section does not apply to information that is: (a) in the public domain, through no fault of Buyer, at or subsequent to the time such confidential information was disclosed to Buyer by UnitedBuilt; (b) rightfully known by Buyer free of any obligation of confidence at the time of disclosure to Buyer by UnitedBuilt, as evidenced by written records; or (c) rightfully obtained by Buyer from a third party without similar restriction from such party and the disclosure of which from such third party does not constitute a violation of an obligation by such third party to UnitedBuilt, each as evidenced by written records.

 

EXCUSABLE DELAY/FORCE MAJEURE

a. UnitedBuilt shall not be liable nor in breach or default of its obligations under any contract to the extent its performance of such obligations is delayed, hindered, or prevented, in whole or in part, directly or indirectly, due to causes beyond its reasonable control, whether foreseeable or unforeseeable, including, but not limited to, acts of God, fires, floods, or other natural disasters (declared or undeclared), terrorism, war (declared or undeclared), armed conflict (or the serious threat of same), plagues, epidemics, pandemics, quarantines, or other public health risks and/or responses thereto, insurrection, civil disturbances, insurrection, riots, mob violence, acts or omissions of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority (including any change of law or regulation), strikes, lock-outs, differences with workers, accidents, labor disputes, transportation shortages, the unavailability or shortage(s) of labor, energy, materials, production facilities, transportation, or shipping, cyber-attacks, viruses, ransomware, failures or interruptions to network systems, data breaches, vendor non-performance, or any other cause, casualty, or excusable delay beyond UnitedBuilt’s reasonable control, whether similar or dissimilar to any of the foregoing. Upon the occurrence of a force majeure or other excusable delay, UnitedBuilt’s performance or delivery date shall be extended for a period equal to the duration of the force majeure event or time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If the delay is due to any acts or omissions of Buyer, or Buyer’s agents, contractors or suppliers, UnitedBuilt shall be entitled to both an equitable performance and price adjustment. If UnitedBuilt incurs increased cost by reason of delay not attributable to any act or omission of Buyer (including but not limited to extended warehouses and storage fees, labor wages, etc.), the increased cost shall be distributed equitably between UnitedBuilt and Buyer, or the Contract shall be cancellable at UnitedBuilt’s election.

 

COMPLIANCE

a. Each Party will at all times and at its own expense: (i) strictly comply with all applicable laws, rules, regulations, ordinances and governmental orders, now or hereafter in effect, relating to its performance of this Agreement, including, without limitation, export and import laws and regulations; (ii) pay all fees and other charges required by such laws, rules, regulations and orders; and (iii) maintain in full force and effect all licenses, permits, authorizations, registrations and qualifications from all applicable governmental departments and agencies to the extent necessary to perform its obligations hereunder. If requested by UnitedBuilt, Buyer will sign written assurances and other export or import related documents, as may be required under applicable export or import laws and regulations.

 

TRADE COMPLIANCE

a. Any products or technical information provided under this Agreement may be subject to U.S. export controls and the trade laws of other countries. The Parties agree to comply with all applicable export control regulations and to obtain any required licenses or item classification to export, re- export, or import deliverables. The Parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist supporting countries as specified in the U.S. Export Administration Regulations (EAR). The Parties will not use deliverables for prohibited nuclear, missile, or chemical biological weaponry end uses as specified in the EAR.

b. Buyer will advise UnitedBuilt in writing within three (3) calendar days of any actual or perceived non-compliance with applicable export control laws and regulations (to include sanction and embargo laws).

 

GOVERNING LAW; VENUE; DISPUTE RESOLUTION

a. Governing Law. These Terms shall be governed by, construed and interpreted in accordance with the laws of the State of Arizona, excluding its conflict of law rules and the arbitration provision in these Terms shall be governed by the Federal Arbitration Act. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OR THE DOCUMENTS RELATED HERETO AND IS HEREBY EXPRESSLY DISCLAIMED BY UNITEDBUILT AND BUYER.

b. Mediation. If any dispute, controversy, or claim arises out of, relates to, or results from the performance or breach of these Terms, excluding claims for non-monetary or equitable relief (collectively, the “Dispute”), the Parties agree to attempt in good faith to negotiate a resolution to the Dispute. If negotiations do not result in a resolution within thirty (30) days from the date first notifies the other Party of the Dispute, either Party may elect to pursue mediation in accordance with this Section upon written notice of such election to the other Party. Such mediation shall be assisted by a neutral mediator acceptable to all Parties and shall require the commercially reasonable efforts of the Parties to discuss with each other in good faith their respective positions and different interests to finally resolve such Dispute. If the Parties are unable to agree on a mediator within twenty (20) days from delivery of the written notice to submit the Dispute to mediation, either Party may invoke the mediation service of the American Arbitration Association (the “AAA”). All costs of the mediation charged by the mediator (and by the AAA if necessary to involve the AAA for administration purposes) shall be split equally by the Parties regardless of the outcome of the mediation.

c. Arbitration of Disputes. The Parties agree that if they are unable to resolve a Dispute by mediation pursuant to this Section, then all Disputes between the Parties arising out of or related in any way to the subject matters covered by these Terms, including, without limitation, claims that the Terms have been breached, shall be submitted to final, binding arbitration in accordance with the AAA’s Commercial Arbitration Rules (the “Rules”), and shall be decided by a single arbitrator mutually agreed upon by the Parties or, in the absence of such an agreement, by a single arbitrator selected according to the Rules. The arbitration shall be held in Maricopa County, Arizona. Each Party understands and agrees that such Party is knowingly and voluntarily waiving all rights to have such controversies, claims, or disputes heard and decided by the judicial process in any court in any jurisdiction. This waiver includes, without limitation, the right otherwise enjoyed by such Party to a jury trial. The arbitrator shall have the power to award any Party any relief available to such Party under applicable law but may not exceed that power. The arbitrator shall explain the reasons for the award but need not produce formal findings of fact and conclusions of law. The arbitrator’s award shall be final and binding and judgment upon the award may be entered in any court of competent jurisdiction. There shall be no appeal from the award except on those grounds specified by the Federal Arbitration Act and case law interpreting the Federal Arbitration Act. All costs of the arbitration charged by the arbitrator (and by the AAA if necessary to involve the AAA for administration purposes) shall be split equally by the Parties regardless of the outcome of the arbitration.

d. Subsequent Arbitration or Litigation Costs. In the event of any arbitration or legal proceeding arising out of or related to this Agreement, the prevailing Party (as determined by the arbitrator or judge, if applicable) shall recover his, her or its arbitration or litigation costs (including, without limitation, attorneys’ fees, expert witness fees and both taxable and non-taxable costs, but not including the costs of arbitration as specified above) incurred in connection with the dispute underlying such legal proceeding.

 

EQUAL EMPLOYMENT OPPORTUNITY

a. The Parties hereby incorporate by reference the requirements of 41 C.F.R. §§ 60-1.4(a), 60- 300.5(a), 60-741.5(a) and 29 C.F.R. Part 471, Appendix A to Subpart A, if applicable. UnitedBuilt and Buyer shall abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a), 60-741.5(a) and 29 C.F.R. Part 471, Appendix A to Subpart A as applicable to the terms of its obligations hereunder. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

 

REPORTING OBLIGATION

a. Buyer must promptly notify UnitedBuilt in writing of any: (i) criminal conviction; (ii) debarment; (iii) indictment or other charge of violating criminal statutes or regulations; (iv) ineligibility to contract with or to receive a license or other form of authorization for a government agency; or (v) denial, suspension, or revocation of eligibility to be involved in exports, imports, or conduct business.

 

MISCELLANEOUS

a. Buyer acknowledges that is has not been induced to purchase any of the Products from UnitedBuilt by any representation or warranty not expressly set forth in these Terms. These Terms, the Sales Confirmation and any Superseding Agreement constitute the entire agreement of the Parties and supersede all existing agreements and all other oral or written communications between them concerning its subject matter. If there is a conflict between the provisions of the Sales Confirmation, the Superseding Agreement and these Terms, then the terms of the Sales Confirmation will govern. No waiver by UnitedBuilt of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by UnitedBuilt. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates, or may be construed, as a waiver thereof. 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. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without UnitedBuilt’s prior written consent. Buyer agrees that UnitedBuilt may scan, image or otherwise convert these Terms into an electronic format of any nature. Buyer agrees that a copy of these Terms produced from such electronic format is legally equivalent to the original for any and all purposes, including litigation. All terms that by their nature are intended to survive shall survive any cancellation or expiration of these Terms or any purchase order or Sales Confirmation.

b. UnitedBuilt expressly disclaims any requirement, understanding or agreement, whether express or implied, contained in any Buyer purchase order, shipping release form, policy, code of conduct or elsewhere, that any of UnitedBuilt’s personnel be vaccinated against Covid-19 under any federal, state or local law, regulation or order applicable to government contracts or subcontracts, including, without limitation, Presidential Executive Order 14042 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors”) and Federal Acquisition Regulation (FAR) 52.223-99 (“Ensuring Adequate COVID Safety Protocols for Federal Contractors”), unless and solely to the extent that such requirement is expressly set forth in a written agreement manually signed by an authorized officer of UnitedBuilt.

 

NOTIFICATION

a. All notices, approvals, consents, requests for demands required or permitted to be given under these Terms shall be in writing and shall be deemed sufficiently given when deposited in the mail, registered or certified, postage prepaid, and addressed to the Party entitled to receive such notice at the address designated herein: