TERMS AND CONDITIONS OF SALE
1. OFFER AND ACCEPTANCE. Power Solutions International, Inc., either by itself or through its affiliates or subsidiaries (Seller) offers to sell the equipment, components, parts, or services described on the face of this document (collectively, the (Goods) upon these terms and conditions (Terms and Conditions) to the entity named in the signature block on the last page on this document (the Buyer). Buyer, as the term is used herein and in any Order, shall, unless expressly provided otherwise, include the Buyer’s parent entity, affiliates and subsidiaries in the event Buyer is found to be insolvent or is otherwise unable to pay outstanding invoices. Acceptance of these Terms and Conditions shall be deemed to have occurred upon Buyer’s issuance of a purchase order, acceptance or acknowledgement hereof, or of any other writing the Buyer may provide to Seller relating to Buyer’s acceptance hereof, or Buyer’s acceptance of any Goods or payment of any portion of the purchase price therefor (collectively, the Order). This document, upon issuance of the Order, constitutes the complete and exclusive statement of the terms and conditions regarding the purchase and sale of the Goods (the Agreement), and supersedes and cancels all previous or contemporaneous understandings and agreements, whether oral or written. The sale and shipment by the Seller of the Goods covered hereby shall be conclusively deemed to be subject to these Terms and Conditions and shall constitute Buyer’s assent to Seller’s terms. Acceptance by Buyer is expressly limited to the Terms and Conditions contained herein. If Buyer’s Order contains terms that are inconsistent with, additional or to conflict with these Terms and Conditions, the Buyer’s form shall be used for convenience only and shall evidence Buyer’s unconditional agreement to these Terms and Conditions, and such conflicting, additional or inconsistent terms or conditions contained in Buyer’s Order shall be deemed a solicitation of the offer set forth herein and shall not be considered a part of the Agreement, but shall be deemed rejected and of no binding force or effect whatsoever between the parties, and the terms hereof shall supersede and shall exclusively govern and control. This Agreement may not be modified except in a writing signed by all parties to be bound.
2. PRICE. If no price is set forth on the face of this document, prices shall be as in effect at the time of shipment. All prices are F.O.B. Seller’s Plant, as defined below, unless otherwise stated. Prices are based on shipping the entire order at one time unless otherwise specified. The invoice price for the Goods is payable net thirty (30) calendar days following the earlier of shipment or invoice. Interest shall be paid on demand on past due amounts at the rate of 18% per annum or the highest rate allowed by law. Buyer shall indemnify Seller for all collection expenses, including reasonable attorneys’ fees and court costs incurred by Seller. If in Seller’s reasonable opinion the financial condition of the Buyer at any time does not justify continuance of production or shipment of Goods on the terms of payment specified, Seller may require full or partial payment in advance and may refuse to perform until it receives adequate assurances of Buyer’s payment or performance. Prices are firm for a period of thirty (30) calendar days following the date hereof and are thereafter subject to change without notice to Buyer. Any delivery or portion thereof not in dispute shall be paid for in accordance herewith, regardless of any disputes or controversies relating to other delivered or undelivered Goods.
3. TAXES. Buyer shall pay all present and future sales, use, revenue, excise or any other taxes applicable to Seller’s sale of Goods or Buyer’s use of the Goods. The amount of all such taxes shall be in addition to, and not included in, the price of the Goods. Any taxes (other than income taxes) that Seller may be required to pay, and that are paid by Seller under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption of transportation of any of the Goods covered hereby, shall for the account of Buyer, who shall promptly pay or reimburse the amount thereof to the Seller upon demand. Buyer may provide, in lieu of payment of such taxes, tax exemption certificates in form acceptable to the appropriate taxing authorities.
4. DELIVERY; RISK OF LOSS; VARIATIONS. (a) All Goods shall be delivered to a carrier F.O.B. Seller’s plant in Wood Dale, Illinois (?Seller’s Plant?), unless otherwise indicated on the face hereof, and consigned to Buyer or its order, as Buyer may direct. Such delivery shall constitute complete and final delivery for all purposes. All shipping and delivery dates and performance schedules are estimates only and are not binding on Seller, and do not guarantee a particular date of shipment, delivery or performance. Seller shall not be liable for any losses whatsoever, whether incidental, consequential or otherwise, attributable to or resulting in any way from delays in shipping or damage occurring during shipping. All shipping and other performance schedules applying to Buyer’s Order shall be subject to any reduction in capacity of Seller’s Plant, and unavailability of materials or tooling. Seller may in its discretion ship the Goods to Buyer at Buyer’s address as shown on the face hereof by any commercially reasonable means and shall have the option of selecting the particular route and carrier. (b) All risk of loss, damage, and shortage in transit with respect to the Goods shall pass and transfer to Buyer upon such delivery, and Buyer shall pursue any claims therefor solely against the carrier. Except as otherwise expressly agreed in writing, and for an additional charge, Seller does not insure Goods against damage, loss or shortage in transit. The price for the Goods does not include charges for freight, packaging, insurance, or federal, state or municipal taxes, all of which are the responsibility of Buyer. (c) Any shortage or excess varying not more than 10% from the quantity ordered will be accepted by Buyer as filling the Order. All Orders are accepted with the understanding that they are subject to Seller’s ability to obtain the necessary raw or precursor materials, and all Orders as well as shipments applicable hereto are subject to Seller’s current manufacturing schedules, and government regulations, orders, directives, and restrictions that may be in effect from time to time. Seller will use its best efforts to furnish Goods within the limits and of the sizes published by the Seller and subject to Seller’s standard tolerances for variations. However, all specifications as to weight, size, length and diameter of the Goods described on the face hereof are approximate. Seller reserves the right to deliver the Good with immaterial deviations from specifications.
5. INSPECTION AND ACCEPTANCE. Buyer shall inspect the Goods immediately upon receipt and, within seven (7) calendar days of such receipt, shall give Seller a full and final written statement of any and all purported defects and nonconformity of the Goods. If Buyer fails to give such written notice within such seven (7) calendar day period, Buyer shall be deemed to have irrevocably accepted the Goods. Buyer shall bear the expense of inspection under all circumstances. Buyer’s sole remedy for defective or Nonconforming Goods is as set forth in Section 11.
6. RETURNED GOODS. Other than Nonconforming Goods as defined in Section 11 herein, Goods may not in any case be returned, and will not be accepted for return by Seller, without the prior written consent of the following authorized officers of Seller: President or Vice President. Only unused Goods as currently manufactured by Seller, invoiced to Buyer within 30 days of their proposed return, will be considered for return. Goods accepted for return credit are subject to a minimum service charge of 20% plus all transportation charges. Goods built to order are not subject to return for credit under any circumstances. Goods must be securely packed to reach Seller without damage, and fully insured by Buyer against loss.
7. FORCE MAJEURE. If performance by Seller is delayed, limited or otherwise made impracticable or burdensome by reason of any cause beyond Seller’s reasonable control, including, without limitation: Acts of God; fire, flood, explosion; vandalism, sabotage; riot, civil unrest, acts of terrorism, war, insurrection; severe weather; failure, curtailment or termination of Seller’s regular sources of supplies; inability to obtain or a delay in obtaining necessary licenses, permits, materials, or equipment; acts or omissions of Buyers, its agents or representatives; delays due to shipping or common carriers; changes or additions to any Order; strikes, labor difficulties or other disputes involving Seller or its suppliers; or any existing or future laws, acts, orders or decrees of any government or regulatory body; then (i) Seller shall not be liable for any loss or damage arising therefrom, (ii) Seller shall be excused from performance to the extent that and for so long as such performance is delayed or made impracticable or burdensome by such cause, and (iii) Seller may adjust the price of the Goods accordingly.
8. CANCELLATION. (a) Orders, once placed with Seller, are not cancelable by Buyer, and Buyer shall not be relieved from any obligation under this Agreement regarding any Order, without the prior written consent of an authorized corporate officer of Seller. Any such consent shall at a minimum provide for additional terms and conditions that will fully indemnify and reimburse Seller for any loss or cost associated with such cancellation, including without limitation cancellation charges based on all special or unique materials purchased or manufactured for the Order, parts in process, special tools, special handling, or other special expenses pertinent to Buyer’s Order. (b) In the event of Buyer’s default hereunder, or if Seller reasonably believes Buyer not to be creditworthy, Seller has the right to: immediately cancel the Agreement; stop work; refuse to ship (or stop delivery of ) any Goods; recall Goods in transit and retake same; repossess all Goods that may be stored with Seller for Buyer’s account; recover any losses or damages incurred by Seller as a result thereof, including charges based on special or unique materials purchased or manufactured for the Order, parts in process, special tools, special handling, or other special expense pertinent to Buyer’s Order; and to seek any other remedy provided by law. Buyer consents that all the Goods so recalled, retaken, or repossessed shall become the absolute property of the Seller, provided the Buyer is given full credit therefor, and Buyer waives notice of replevin. The foregoing shall not limit or be in lieu of any of the rights or remedies available to the Seller under the Uniform Commercial Code in effect in the State of Illinois. Buyer’s default includes (i) Buyer’s insolvency or the filing or institution of a proceeding by or against Buyer under any bankruptcy, reorganization, arrangement of debt, insolvency or similar law, (ii) an assignment for the benefit of creditors by Buyer, (iii) the appointment of a receiver, trustee or custodian for any of the property or assets of Buyer, or (iv) Buyer’s otherwise being in default of any obligation to Seller under the Agreement or otherwise. By submitting an Order to Seller, Buyer represents that it is solvent and agrees to notify Seller immediately in writing upon the occurrence of any of the events set forth in this Section 8(b). (c) Seller shall have the additional right in the event of the happening of any of the contingencies set forth in Section 7, at its option, to cancel the Agreement or any part hereof without any resulting liability.
9. INSTALLATION OF GOODS. Buyer shall install all Goods and Seller shall bear no expense of installation of Goods.
10. DISCLAIMER OF WARRANTY. To the extent that the Goods or portions or parts thereof may be covered by manufacturers’ warranty, Seller hereby assigns all rights and benefits under such manufacturers’ warranties to Buyer, if assignable, and undertakes to assist Buyer in the coordination of any claims under such warranties. Seller makes no further warranty of any kind with respect to the Goods. SELLER DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF CONFORMITY TO SPECIFICATIONS, MODELS, SAMPLES OR OTHERWISE. SELLER WILL NOT BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF USE OR LOSS OF PROFITS, FOR ANY BREACH OF WARRANTY OR FOR NEGLIGENCE.
11. BUYER’S REMEDIES. Seller’s liability for any breach of any provision hereof is limited to either (i) repair or replacement of any Goods reasonably determined by Seller upon proper notice from Buyer to contain defects or to be nonconforming to the Order or requirements set forth in the Order (?Nonconforming Goods?), or (ii) upon return of the Nonconforming Goods, credit to the Buyer of the amount paid therefor, whichever Seller shall elect in its sole and reasonable discretion. Seller’s liability arising for any reason under his Agreement shall in no event be greater in the aggregate than the price paid by Buyer for the Goods and shall not include any labor, shipping or other costs incurred in connection with any repair, replacement, reinstallation or reshipment. Buyer shall provide Seller access to the Goods as to which Buyer claims a purported defect or nonconformance. Seller’s obligation to repair or replace shall only apply to Goods that examination by Seller or Seller’s representatives determines to have been defective under ordinary and normal use. Upon request by Seller, Buyer shall, at its own risk and expense, promptly return the Goods in question to Seller’s Plant. Any Nonconforming Goods returned to Seller must be accompanied by proof of purchase, and the transportation of the Goods must be prepaid by Buyer and will be reimbursed by Seller. Any Goods that are repaired or replaced by Seller shall be re-delivered to Buyer F.O.B. Seller’s Plant. Seller shall not be required to repair or replace more than the Goods actually found to be defective. No allowance shall be made for any expenses incurred by Buyer in repairing defective parts or supplying any missing parts except on the written consent of Seller. If Seller agrees to replace or repair a defective part, Buyer shall have the responsibility and bear the cost for and related to procuring and providing all necessary dismantling, reassembling, and handling facilities in connection with these services. Buyer is responsible for determining the suitability of Seller’s products for Buyer’s use or resale, or for incorporating them into objects for applications that Buyer designs, assembles, constructs or manufactures. THE REMEDY SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER AND BUYER WAIVES ALL OTHER REMEDIES AGAINST SELLER.
12.INDEMNIFICATION. Buyer hereby waives and releases Seller from, and shall defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns from and against, any and all claims, actions, causes of action, liabilities, liens, losses, expenses and costs (including, without limitation, the costs of litigation and attorneys’ fees), by Buyer or any third party claiming by, through or in the right of Buyer relating to: (i) the manufacture, purchase, sale, ownership, operation or use of the Goods or any device, material or thing to which the Goods are attached or of which the Goods are made a part or within which the Goods are enclosed; and (ii) any claimed or actual breach by Buyer of Buyer’s obligations hereunder or any acts primarily attributable to the conduct of Buyer or its employees and agents, including, but not limited to, the negligence or reckless conduct of Buyer’s employees or agents, Buyer’s maintenance of the Goods, Buyer’s addition to or modification of the Goods, or Buyer’s use of the Goods in an appropriate manner, regardless of whether Seller may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault and regardless of the manner in which such claim or liability arises. Buyer shall bear sole responsibility for providing adequate and efficient safeguards, work-handling tools, and safety devices necessary to provide a safe workplace and to protect fully all personnel from bodily injury or death which otherwise may result from the use, operation, setup or maintenance of the Goods. Compliance with all prevailing federal, state, and local codes and industry-accepted standards is the responsibility of Buyer alone. Seller shall bear no responsibility whatsoever for the failure of Buyer to order, install, or use safeguards, work-handling tools, or safety devices. Buyer shall establish, and require all persons who use, operate, set up, or maintain the Goods to use, all proper and safe operating procedures, including, but not limited to, procedures set forth in any manuals or instruction sheets relating to the Goods. Buyer shall not remove or modify any devices, warning signs, or manuals furnished with or installed upon or attached to the Goods.
13. LIMITATION OF LIABILITY IN GENERAL. In no event whatsoever shall Seller or any of its shareholders, directors, officers, affiliates, predecessors, successors and assigns, be liable to Buyer or any third party or any of their shareholders, directors, officers, affiliates, predecessors, successors and assigns, for any incidental, indirect, consequential, exemplary or special losses, damages, costs or expenses of any kind relating in any way to the manufacture and sale of the Goods, the use of or inability to use such Goods, or acts or omissions in connection herewith (including, without limitation, lost profits or the use of or the loss of use of any of the Goods or other property), regardless of whether Seller and/or others may be wholly, concurrently, partially, jointly or solely negligent or otherwise at fault, and whether or not the Seller has been made aware of the potential for any such liability. In no event shall Seller’s liability arising under this Agreement for any reason exceed, in the aggregate, the purchase price of the Goods purchased hereunder.
14. LIEN FOR NON-PAYMENT; COSTS OF COLLECTION. Should Buyer fail to make two (2) consecutive undisputed payments to Seller for the Goods, or if such amounts are not disputed in writing by Buyer to Seller in such time, Seller may seek a mechanics’ lien on the Goods not thereby paid for or disputed (the ?Collateral?). Prior to obtaining any lien in the Collateral, the Seller shall notify Buyer of its intent to file such lien. Any repossession, sale or disposal (including Seller’s internal use thereof) of the Collateral by Seller shall offset those amounts otherwise due from Buyer to Seller for the Goods. Buyer shall be responsible for all collection expenses, including reasonable attorneys’ fees and court costs incurred by Seller for Seller’s proper action in enforcing this Section.
15. MODELS, PREPRODUCTION OR EVALUATION SAMPLES; SPECIAL ORDERS. (a) In any case where Seller provided Buyer with models, prototypes, preproduction, evaluation or specification samples, whether or not pursuant to designs or specifications provided by Buyer (collectively), ?Prototypes?), Buyer shall examine the Prototypes fully. Such Prototypes shall not be offered for sale, sold or provided to, or incorporated into, attached to or enclosed within any device, material, product or thing, that is subsequently offered for sale to or consumption or use by, any third parties or the general public. Buyer agrees to defend, indemnify and hold harmless Seller and its shareholders, directors, officers, affiliates, predecessors, successors and assigns, from and against any and all claims, actions, causes of action, liabilities, liens, losses and costs (including, without limitation, the costs of litigation and attorneys’ fees), resulting from Buyer’s breach of this Section 15. (b) If any material shall be manufactured and/or sold by Seller to meet the Buyer’s particular specifications or requirements and is not part of the Seller’s standard product line offered by it to the trade generally in the usual course of the Seller’s business. Buyer agrees to defend, protect, hold and save harmless Seller against all suits at law or in equity and from all damages, claims, and demands for actual or alleged infringement of any United States or foreign patent and to defend any suit or actions which may be brought against Seller for any actual or alleged infringement because of the manufacture and/or sale of the material covered thereby.
16. REQUIRED SIGNATURES. Seller shall not be bound by any agreement, whether oral or otherwise, or any other writing, irrespective of the authority under which the employee or agent of Seller has or claims to have for the purposes of acting on behalf of or binding Seller, unless signed by either the President or Vice President of Seller.
17. CONFIDENTIALITY. Buyer acknowledges that Seller possesses certain confidential or proprietary information, including but not limited to the following: certain know- how, trade secrets, patent applications, formula books, information regarding research and inventions, customer, vendor and supplier lists, customer sales histories, customer-related data, processes, other data (including data relating to or provided by vendors or suppliers), specifications, computer programs, drawings, designs, marketing plans, bid and pricing information (including without limitation all pricing information relating to the Goods and to this Agreement) and other trade secrets collectively, ?Confidential Information?), which may, whether intentionally or otherwise, be disclosed to Buyer. Buyer agrees that it will not under any circumstances disclose any Confidential Information to any other person or entity, or use such Confidential Information for or on behalf of itself or any third party, for any reason and whether or not for consideration, unless specifically authorized to do so by a corporate officer of Seller. Buyer acknowledges that any disclosure by Buyer of Confidential Information will cause irreparable harm for which monetary damages would not be an adequate remedy. Seller shall therefore have the right to enforce this Section 17 by seeking and obtaining injunctive or other equitable relief in any court of competent jurisdiction, without first having to show actual damages or post any bond. Such relief shall be in addition to, and not in lieu of, any other relief available to Seller at law or pursuant to this Agreement.
18. TIME LIMITATION ON ACTIONS; WAIVER. (a) Any claim or action by Buyer relating to the sale of the Goods by Seller or Buyer’s use of the Goods must be commenced not later than one (1) year after Buyer knew or reasonably should have known of the existence of such a claim, but in no event later than two (2) years after tender of delivery of the Goods. If Buyer fails to commence any such action within the aforesaid period, the action shall be deemed barred and Seller shall have no liability whatsoever to Buyer. (b) No failure of Seller to require strict performance by Buyer of this Agreement shall waive, affect or diminish any right of Seller to demand strict performance of the Agreement thereafter. No wavier, alteration or modification of any of the provisions hereof shall be binding on Seller unless made in writing and agreed to by the President or Vice President of Seller. Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any default by the other which may thereafter occur. The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.
19. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of Illinois, without regard to any choice of law rules or principles. Buyer hereby submits to the jurisdiction of the state and federal courts for the State of Illinois, County of Cook, and said courts shall have exclusive jurisdiction and venue to adjudicate the rights and obligations of the parties relating in any manner to this Agreement. Buyer hereby designates the Secretary of State of Illinois as an authorized agent to accept service of process for Buyer in the State of Illinois.
20. SEVERABILITY. If any provision of this Agreement is held by any court to be invalid or unenforceable, such provision shall be deemed to be modified or severed here from, but only to the minimum extent necessary to enable that and the remaining provisions of this Agreement to be valid and enforceable, and upon such modification or severance the other terms and conditions hereof shall remain in full force and effect.
21. NO ASSIGNMENT. Buyer may not assign any rights or obligations under this Agreement without prior written consent of an authorized corporate officer of Seller. Upon such permitted assignment, these Terms and Conditions of Sale shall binding upon the successors and assigns of Buyer.
22. OWNERSHIP OF DEVELOPMENTS. In the event that, as a result of or in connection with the performance of this Agreement, Seller either alone or in conjunction with Buyer, develops, discovers or invents any product, device, improvement, technique, invention, know-how, derivative work or otherwise, in the nature of intellectual property, then such intellectual property shall not be deemed a work made for hire, and all right, title and interest therein shall be owned by, and shall vest exclusively in, Seller. Buyer agrees to execute and deliver any document or instrument that Seller may reasonably request to better evidence Seller’s exclusive ownership of such intellectual property.
Payment terms if granted are due from date of invoice.
Deductions are not allowed from the invoice, unless approved by the Seller.
No material returns are allowed unless approved by the seller, a Material Return Authorization (RMA) has been issued and the goods have been received by the seller. Returned items will be subject to a minimum 20% restocking charge and the Buyer is responsible for payment of freight on returned goods.
No debits, deductions, or withholding of payment for issues regarding warranty work on parts or engines are allowed. This includes product sent for warranty purposes. Warranty issues are separate from payment of invoices that are due within the payment terms. Warranty issues are to be resolved through our Warranty Department.
Buyer agrees to pay for reasonable collection and attorney fee’s required to collect monies owed to the Seller, should a collection agency or court proceeding be required to collect.
The Seller will not refund credit balances due to credits.
The Seller has the right to terminate, change, or rescind this Agreement at anytime. This includes revoking open credit terms and changing credit limits.
This Sales Order Acknowledgement is to acknowledge the receipt of your (“Customer”) purchase order for the specified products (“Products”) of Power Solution Internationals, Inc. (“PSI”) and to set forth the terms and conditions (“Terms and Conditions”) of sale for this order. If the Terms and Conditions of this acknowledgment differ in any way from the terms and conditions of Customer’s order, this acknowledgment shall be construed as a counteroffer and shall not be effective as an acceptance of such order unless Customer assents to the Terms and Conditions contained herein, which shall constitute the entire agreement between the parties. Customer’s assent to the Terms and Conditions contained herein shall be deemed given upon Customer’s failure to object to these Terms and Conditions in writing within ten (10) days from the date of receipt of this acknowledgment. Customer’s receipt of delivery of the Products without immediate return will further manifest Customer’s assent to these Terms and Conditions. No additions to or modifications of any of the Terms and Conditions hereof shall be effective unless made in writing and signed by both parties
Terms Governing the Subject Matter of this Transaction. The Terms and Conditions governing this transaction shall include the terms of this Sales Order Acknowledgement and PSI’s Standard Terms and Conditions, which can be found at https://www.psiengines.com/tnc/. PSI may modify its standard terms and conditions for any reason at any time, by posting a new version on the above link; these changes do not affect the rights and obligations of the parties for products shipped prior to such changes. Any subsequent shipment will be subject to the terms in effect at the time of shipment. Please review these terms periodically for changes. Failure to object to such new changes before a shipment shall be deemed as acceptance of such new changes.
No Acceptance. PSI’s performance under this Sales Order Acknowledgment does not constitute an acceptance of provisions of any Customer purchase order that are different from or additional to the terms of this Sales Order Acknowledgment and PSI’s Standard Terms and Conditions, and such different or additional provisions are hereby expressly rejected and are void. None of Customer’s inconsistent and/or additional terms and conditions submitted in acknowledging or accepting this Sales Order Acknowledgement or in issuing purchase orders, releases, shipping instructions or other documents shall apply.
Exception. The above conditional acceptance only applies to transactions that do not have a written supply or similar agreement duly executed by both PSI and Customer. If there is such an agreement, then those terms shall be the terms that govern this transaction and the relationship of the parties.