GUIDANT POWER TERMS AND CONDITIONS
(v25.3)
1.0 DEFINITIONS
1.1 The term “COMPANY” referred to herein shall mean SCP ELECTRICAL SAFETY INTERMEDIATE HOLDINGS, LLC dba GUIDANT POWER, together with any of its subsidiaries and affiliates providing Work or Goods under a Quotation.
1.2 The term “Purchaser” referred to herein shall mean the Purchaser listed on the Quotation.
1.3 The term “Quotation” referred to herein shall mean the offer by COMPANY to Purchaser for the performance of certain services and work (the “Work”) and/or sale of equipment and goods (the “Goods”) set forth in such Quotation. The Quotation may be accompanied by a separate proposal setting forth the details of the Work and/or Goods and such proposal shall constitute a part of the Quotation. By Purchaser’s acceptance of the Quotation, Purchaser shall be subject to these Terms and Conditions of Supply, Performance and Sale (these “Terms and Conditions” and collectively with the Quotation, the “Contract”), which are deemed incorporated therein unless specifically stated otherwise.
2.0 TERMS AND CONDITIONS
2.1 COMPANY hereby gives notice of its objection to any different or additional terms and conditions, except for any such terms and conditions as may be expressly accepted in writing.
2.2 Unless different or additional terms and conditions are stated or referred to in the Quotation, in which event such different or additional terms and conditions shall be exclusive to the particular subject covered, these Terms and Conditions supersede any prior or contemporaneous agreements or correspondence between the parties. No form provision of Purchaser shall be of any force or effect.
3.0 QUOTATIONS
3.1 The Quotation shall be valid for thirty (30) days from the date of issue, unless specifically stated otherwise in the Quotation.
3.2 The Quotation shall be based solely on the documents provided by Purchaser, such as drawings, specifications and/or instructions of the Purchaser, as modified by agreement or COMPANY objection. Significant deviations between the actual conditions and circumstances of the Work and/or Goods and those specified in the documents shall be just cause for an appropriate adjustment in work scope, price and time allowed for performance.
3.3 If revisions to the engineering work are required due to inaccurate, incomplete, or erroneous information provided by the Purchaser, the Purchaser shall bear all additional costs for such revisions, including any delays or rework caused by the errors.
3.4 Electrical upgrades or modifications, and Personal Protective Equipment (PPE) will be recommended, but are not included in the proposal.
4.0 INVOICING, PAYMENT AND CANCELLATION
4.1 Unless specifically noted otherwise in the Quotation, all prices quoted are NET, without any discount, and are firm for the period through the completion of the Work and/or delivery of the Goods, as applicable.
4.2 Unless specifically noted otherwise in the Quotation, COMPANY may invoice Purchaser monthly for all Work performed and for all Goods delivered. Purchaser may delay the Work, for a period not to exceed sixty (60) days, by giving written notice to COMPANY, and Purchaser shall pay for all Work prior to the delay and will pay all costs incurred by COMPANY as a result of such delay. COMPANY will be entitled to an increase in the time of performance equal to the delay and a reasonable time necessary to accommodate conditions created by the delay. If such delay results in increased costs to COMPANY, or a general price increase of COMPANY occurs during the delay, COMPANY shall be entitled to an adjustment in the contract price.
4.3 Terms of payment are net upon receipt of invoice. All past due accounts will be charged interest at the rate of 1% per month, until paid in full. A 4% transaction fee will be added to credit card payments.
4.4 If, in the reasonable opinion of COMPANY, the financial condition of the Purchaser does not justify the terms of payment specified in the Quotation at the time the Work is ready to be performed or the Goods are ready for shipment, COMPANY may require payment in advance or other adequate assurance of performance.
4.5 In addition to any remedies that may be provided under these Terms and Conditions and unless otherwise set forth in the Quotation, in the event Purchaser (a) fails to timely pay any amount when due, (b) has not materially performed or complied with these Terms and Conditions, in whole or in part, or (c) becomes insolvent or files for bankruptcy, COMPANY shall be entitled to cancel the Contract and any outstanding COMPANY obligations related thereto. Upon cancellation, COMPANY shall be entitled to receive payment for any and all Work performed and Goods delivered through the date of cancellation and reimbursement for its reasonable and proper cancellation charges discussed further below. COMPANY shall also be entitled to retain possession of any equipment repaired or serviced under the Contract until the foregoing payments and charges for the Work and Goods have been paid. If any payments and charges are not paid within ninety (90) days of the completion of the Work, delivery of the Goods or earlier cancellation by COMPANY in accordance with this section, COMPANY shall be entitled to sell the repaired or serviced equipment at a public or private sale, upon written notice to the Purchaser, in addition to any other remedies that may be available to COMPANY.
4.6 Purchaser agrees to pay and reimburse COMPANY for any and all attorneys’ and/or collection fees that are incurred by COMPANY in the collection of amounts due and payable hereunder.
4.7 Purchaser shall not back charge COMPANY, or offset against COMPANY invoices, for any costs or expenses, without the express written consent of COMPANY.
4.8 Purchase orders are non-cancellable unless approved by the COMPANY. If approved by the COMPANY, Purchaser must provide twenty (20) days written notice to COMPANY and payment of reasonable cancellation charges of COMPANY, with a minimum due of 20% of the total value of the purchase order. Cancellation charges shall include time and expenses incurred at applicable rates, charges incurred from third parties as a result of such termination, and re-stocking charges.
4.9 Only services mentioned in this Quotation are covered. Incidental costs that may be incurred will be billed at cost plus 20%, examples include: additional training requirements for on-site access (i.e. need to complete MSHA training), contractor safety prequalification vetting service (i.e. Avetta), or customer directed itemized costs.
4.10 COMPANY shall have the right to suspend affected Work pending resolution of any payment disputes. All remedies of COMPANY are cumulative, and in addition to remedies available at law or in equity.
4.11 Scheduling shall occur in a concurrent fashion, unless otherwise agreed upon in advance. Non-concurrent training days will result in an additional travel fee (mileage and time)
4.12 If Purchaser requires work to be performed on a weekend or holiday, unless agreed upon by the COMPANY, the price will be adjusted to reflect the applicable differentials.
4.13 If the work is caused to be interrupted by, or for the convenience of Purchaser, or cannot be performed according to the agreed project schedule, there will be separate charges for the additional time and expenses.
5.0 PRICE POLICY
5.1 Prices are subject to change without notice. Price adjustment clauses will be stated at the time of quotation and a copy will be included as part of the Quotation.
6.0 MINIMUM BILLING
6.1 The minimum billing for Work performed on a single purchase order will be four (4) hours charged at the applicable rate, but not less than $450 per hour. The minimum billing for Goods supplied on a single purchase order will be $100, or such larger amount required by any affected third party vendor.
7.0 EXCUSE OF PERFORMANCE
7.1 COMPANY shall not be liable or responsible for cost, expense, or damage due to a delay in performance of services or other obligations when such delay is due to causes beyond COMPANY’S reasonable control, including, but not limited to, any Force Majeure Event (defined further below).
8.0 LAWS, REGULATIONS, PERMITS, LICENSES AND LOCAL ORDINANCES
8.1 The Purchaser shall inform COMPANY of any special laws, regulations, or ordinances that the Purchaser may be aware of and which shall affect the performance of the Work, the supply of the equipment or the delivery of the Goods.
8.2 Unless specifically noted elsewhere in the Quotation, the Purchaser shall be responsible for securing any and all licenses and/or permits, whether temporary or permanent in nature, required for the performance of the Work.
8.3 COMPANY will be entitled to a reasonable adjustment in the contract price or time of performance for significant changes in any of the laws, regulations, or ordinances governing the Work or the Goods, which shall occur after the issuance of the Quotation and affect the time or cost of performance.
9.0 WARRANTIES
9.1 COMPANY warrants, to the extent to which any of the same may be applicable, that the Work performed by it will be competent and any recommendations of its representatives shall reflect their best professional knowledge or judgment.
9.2 COMPANY shall, upon prompt written notice from Purchaser, correct any failure to conform to any of the applicable foregoing warranties that may appear with a period of ninety (90) days after completion of the Work, or shipment of the Goods, requiring correction under this warranty. In the case of any other breach of the foregoing warranty, COMPANY shall furnish services or specialized tools, equipment and instruments, to the same extent as on the original Work. It is understood and agreed that unless otherwise agreed to in writing by COMPANY, COMPANY assumes no responsibility with respect to the suitability of Purchaser’s Goods or with respect to any latent defects in the same. In no event shall COMPANY be responsible for providing working access to the defect, including the removal, disassembly, replacement or reinstallation of any equipment, materials or structures to the extent necessary to permit COMPANY to perform its warranty obligations, or transportation costs to and from the factory or repair facility, or for damage to equipment components or parts resulting in part from improper maintenance or operation of the equipment in a deteriorated condition. The condition of any tests shall be mutually agreed upon and COMPANY shall be notified of, and may be present at all tests that may be made.
9.3 COMPANY warrants that any engineering studies performed by it will conform to high professional standards. Any portion of the study that does not so conform shall be corrected by COMPANY upon notification in writing by Purchaser within six (6) months after completion of the study, as Purchaser's sole remedy.
9.4 All warranty work shall be performed on a single shift straight time basis Monday through Friday. In the event that the Work or Goods require correction of warranty items on an overtime schedule, the premium portion of such overtime shall be for the Purchaser’s account.
9.5 THE FOREGOING WARRANTIES AND ANY ADDITIONAL WARRANTIES PROVIDED IN THE QUOTATION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED (INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE), EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT.
9.6 The remedies provided above are the Purchaser’s sole remedies for any failure of COMPANY to comply with its obligations. Correction of any nonconformity in the manner and for the period of time provided above shall constitute complete fulfillment of all liabilities of COMPANY whether the claims of the Purchaser are based in contract, in tort (including negligence) or otherwise with respect to or arising out of the Work performed hereunder. IN NO EVENT SHALL COMPANY, BY REASON OF ITS WARRANTY OBLIGATIONS OR OTHERWISE, BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND FROM ANY CAUSE, REGARDLESS OF THE BASIS OR FORM OF THE ACTION.
10.0 LIABILITY; INDEMNIFICATION
10.1 Neither party shall be liable or responsible for loss, damage, injury, or delay caused by conditions beyond that party’s reasonable control, including but not limited to acts of God, acts of government agencies, strikes, labor disputes, fire, explosions or other casualties, thefts, riots, war, malicious mischief, unavailability of repair material, natural disasters, power failure, or material or transportation shortage (each, a “Force Majeure Event”).
10.2 COMPANY shall have no liability under the Quotation for any injury, loss or damage caused directly or indirectly by any equipment or system not specifically covered by the Quotation.
10.3 Notwithstanding anything to the contrary contained herein, the maximum liability of COMPANY to the Purchaser for any claim, loss, damage or injury for which COMPANY may be liable pursuant to these Terms and Conditions, the Quotation, the work performed by COMPANY, the materials supplied by COMPANY, or the Goods delivered by COMPANY, shall not exceed the price of the Work and/or Goods on which such liability is based.
10.4 Unless otherwise agreed to in writing by a fully authorized representative of COMPANY, the Work and Goods proposed in the Quotation are not intended for use in, or connection with, a nuclear facility or activity. If so used, for whatever reason, COMPANY shall not be liable for any damage, injury or contamination arising out of the supply of any products, equipment or Goods hereunder or the providing of any Work hereunder, and Purchaser shall indemnify COMPANY against any such liability, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise.
10.5 Notwithstanding anything to the contrary contained herein, COMPANY, its contractors and suppliers of any tier, shall not be liable in contract, for loss of profits or revenue, loss of use of equipment or power system, cost of capital, cost of purchased or replacement power or temporary equipment (including additional expenses incurred in using existing facilities), claims of customers of the Purchaser, or for any special, indirect, incidental, or consequential damages whether based in contract or in tort, including negligence or strict liability.
10.6 Purchaser hereby agrees to indemnify, defend and hold harmless COMPANY and its employees, contractors, agents and representatives (collectively, the “Indemnitees”) from and against any and all claims, actions, damages, suits, liabilities, costs, fees and any other expenses (including reasonable attorneys’ fees) that may be asserted by a third party against any Indemnitee in connection with the Purchaser’s breach of the Contract, negligence, willful misconduct or other acts or omissions in connection with its obligations hereunder.
11.0 TIME ALLOWED FOR PERFORMANCE
11.1 The time allowed for performance of the Work shall be as specified in the Quotation. It shall commence upon the execution of the Quotation or other written acceptance by the Purchaser and COMPANY, and shall be deemed duly met if the work is substantially completed within the time allowed within the Quotation.
11.2 If the equipment to be furnished by COMPANY under the terms of the Quotation in connection with the Work shall become temporarily or permanently unavailable for reasons beyond the control and without the fault of COMPANY, then in the case of such temporary unavailability, the time for performance of the Work shall be extended to the extent, thereof. In the case of permanent unavailability, COMPANY shall at Purchaser’s option either: (a) be excused from furnishing said equipment, or (b) be reimbursed by Purchaser for the difference between the cost of the equipment unavailable and the cost of a reasonably available substitute thereof.
11.3 COMPANY shall not be liable for any delay in the performance of the Work or delivery of the Goods resulting from or attributed to any Force Majeure Event and any acts or omissions of the Purchaser, owner or other contractors or subcontractors, or delays caused by the suppliers or subcontractors of COMPANY.
11.4 Work will commence on a date mutually agreed to by COMPANY and Purchaser. If Purchaser requires work to be performed on a weekend or holiday, unless agreed upon by COMPANY, the price will be adjusted to reflect the applicable differentials.
12.0 TAXES
12.1 The price listed in the Quotation does not include any duties, levies, sales, use, excise, or other similar taxes, unless specifically noted otherwise within the Quotation.
12.2 Purchaser shall pay, in addition to the stated price, all taxes legally required to be paid by Purchaser or, alternatively, shall provide COMPANY with valid tax exemption certificates.
13.0 INSURANCE
13.1 Insurance coverages in excess of COMPANY’s standard coverages and limits will only be furnished when specifically requested by Purchaser and when detailed within the Quotation.
13.2 No credit will be given or premium paid by COMPANY for insurance afforded by others.
14.0 SHIPPING AND DELIVERY; INSPECTION.
14.1 COMPANY shall use commercially reasonable efforts to deliver the Goods by the estimated delivery date set forth in the Quotation, if applicable. Notwithstanding the foregoing, COMPANY shall not be liable for any delivery delays.
14.2 Unless otherwise agreed to in writing by COMPANY and Purchaser, COMPANY shall deliver the Goods FOB to the address specified by Purchaser in writing. Title and risk of loss of the Goods shall pass to Purchaser upon delivery. Purchaser shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the delivery point.
14.3 If for any reason Purchaser fails to accept delivery of the Goods, or if COMPANY is unable to deliver the Goods at the agreed upon delivery point because Purchaser has not provided appropriate instructions, documents, licenses or authorizations, (a) risk of loss to the Goods shall pass to Purchaser, (b) the Goods shall be deemed to have been delivered, and (c) COMPANY, at its option, may store the Goods until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses, including, without limitation, storage and insurance costs.
14.4 Purchaser shall inspect the Goods within ten (10) days of delivery thereof and inform COMPANY of any Nonconforming Goods. “Nonconforming Goods” shall mean only the following: (a) the Goods shipped are different than identified in the Quotation, or (b) the Good’s label or packaging incorrectly identifies it contents. If Purchaser timely notifies COMPANY of any Nonconforming Goods, COMPANY shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Purchaser in connection with shipment of the Nonconforming Goods to a location specified by COMPANY. Purchaser acknowledges and agrees that the remedies set forth in this section are Purchaser’s exclusive remedies for the delivery of Nonconforming Goods.
15.0 ENTIRE AGREEMENT
15.1 The Quotation, complete with these Terms and Conditions, shall, upon acceptance, constitute the only and entire agreement between the parties, and supersedes any prior representations or understandings. Purchaser specifically acknowledges and agrees that any purchase order issued by Purchaser pursuant to the Quotation shall operate only to establish payment authority for Purchaser’s internal accounting purposes. Any such purchase order issued by Purchaser shall not be considered as a counteroffer, addition, amendment, modification or other revision to the terms of the Quotation, and any terms or conditions contained in Purchaser’s purchase order shall be of no force and effect in connection with the Quotation.
15.2 If any part, paragraph or portion of the Quotation or these Terms and Conditions shall be found to be invalid by virtue of law or legal decision, the remainder of these Terms and Conditions shall not be affected and shall remain fully in force, while the Purchaser and COMPANY shall jointly seek to replace the invalid part, paragraph, or portion with an agreement having a legal, commercial, and economic effect as similar as possible to the invalid part, paragraph, or portion.
16.0 CHANGES
16.1 No change or modifications of the Quotation or these Terms and Conditions shall be binding upon COMPANY unless specifically accepted by COMPANY in writing. Change requests will be resolved and recorded on a change order signed by both parties prior to implementation.
17.0 PURCHASER RESPONSIBILITIES
17.1 Purchaser shall provide COMPANY ready access to the site where Work is to be performed with adequate workspace and facilities. Purchaser shall not require COMPANY or its employees or contractors, as a condition to site access or otherwise, to further agree or enter into any agreement, which waives, releases, indemnifies or otherwise limits or expands any rights or obligations whatsoever. Any such agreements shall be null and void. Purchaser shall inform COMPANY, in writing, at the time of order placement, of any known hazardous substance or condition at the site, including, but not limited to, the presence of asbestos or asbestos containing materials, and shall provide COMPANY with any applicable material data safety sheets regarding the same. Purchaser shall inform COMPANY, in advance, of any special safety requirements, equipment, or training required to work on the site, and the Purchaser shall bear any related costs.
17.2 COMPANY will provide guidance, however Purchaser will be responsible for obtaining and if necessary; scheduling and attending any meetings with their utility provider should the utility provider require on-site meetings to supply requested characteristics necessary for the electrical system study.
17.3 COMPANY will not be providing a copy of the electrical engineering software. Purchaser would need to purchase a license to access.
17.4 Purchaser will provide lifts, ladders and assistance in any locations not within reach from the ground.
18.0 GENERAL PROVISIONS
18.1 These Terms and Conditions shall be governed by and performance construed in accordance with the laws of the State of Illinois without regard to its conflict of law provisions.
18.2 These Terms and Conditions shall be effective upon the acceptance by Purchaser of the Quotation and shall remain in effect until the latter of the completion of the Work, delivery of the Goods and the full satisfaction of all obligations hereunder, including payment obligations. Notwithstanding the foregoing, any provisions of these Terms and Conditions which by their nature should apply beyond their terms shall remain in force after the termination or expiration hereof.
18.3 The Quotation, Terms and Conditions and rights and obligations of Purchaser hereunder shall not be assignable by Purchaser without the prior written consent of COMPANY. Any purported assignment in violation of this section is null and void. Notwithstanding the foregoing, the Quotation and Terms and Conditions shall be binding upon and inure to the benefit of the parties’ successors and assigns.
19.0 TRAINING CONTENT PROTECTION TERMS AND CONDITIONS
19.1 All training materials, including but not limited to written content, presentations, videos, eLearning modules, graphics, audio files, and any related documentation (collectively, "Content"), are the exclusive property of the COMPANY and are protected by copyright, trademark, and other intellectual property laws. The Content is provided solely for use of the Purchaser and its authorized participants.
19.2 The COMPANY grants the Purchaser a limited, non-exclusive, non-transferable, and revocable license to access and use the Content solely for the purpose of training within the scope of the Quotation. This license does not grant any rights to modify, copy, reproduce, distribute, publicly display, create derivative works from, or otherwise exploit the Content without the express prior written consent of the COMPANY.
19.3 Purchaser shall not: Download, record, copy, reproduce, or distribute the Content in any form unless explicitly authorized in writing by the COMPANY. Use the Content for any commercial purpose, including but not limited to reselling, sublicensing, or incorporating it into other training programs. Modify, reverse engineer, decompile, disassemble, or create derivative works based on the Content. Share access credentials to the learning management system or permit unauthorized individuals to access the Content.
19.4 Any unauthorized use, reproduction, or distribution of the Content constitutes a material breach of these Terms and Conditions and may result in the immediate termination of the customer’s access to the Content without refund. The COMPANY reserves the right to pursue all legal and equitable remedies available, including injunctive relief and damages.