- Times in this Agreement are Central US Time (Chicago).
- On orders received before 5PM on a business day, Parts for the Covered Equipment will be shipped out the same day. Orders of Parts for the Covered Equipment received after 5PM will be shipped the next business day.
Invoicing and Payment: Customer shall pay MEAU the price for the Option selected in advance, plus applicable salesƒuse taxes. Charges are payable by Customer net thirty (30) days from date of invoice. Services and repairs not covered under the Option will be billed on a labor and parts basis, payable at the time services are rendered unless other arrangements are agreed to by MEAU in advance. Prices do not include any applicable sales, use or other taxes, and the amount of any such taxes which MEAU may be required to pay or collect may be added to each invoice or separately invoiced by MEAU to Customer. Any past due amounts are subject to interest at the lower of one percent (1%) per month or the highest rate permitted by law. Customer is responsible for all costs and expenses incurred by MEAU, including attorneys’ fees and costs, in collecting past due invoices or other payments.
- The Parts and Services provided by MEAU under this Agreement do not assure that operation of the Covered Equipment will be uninterrupted or error free.
- MEAU warrants for the longer of the remaining term of this Agreement or ninety (90) days from the date of service (the “Warranty Period”) that: (i) Services shall be performed in a competent manner; and (ii) any Parts furnished by MEAU in connection with this Agreement shall be free from defects in material and workmanship at the time of installation (a breach of either clause (i) or (ii), a “Covered Defect”). Customer understands that Parts may include, at MEAU’s election, replacement of Equipment, parts or components thereof with functionally equivalent reconditioned Equipment, parts or components.
- IF MEAU RECEIVES WRITTEN NOTICE OF A COVERED DEFECT DURING THE WARRANTY PERIOD, MEAU’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE, AT MEAU’S SOLE OPTION, TO ADJUST OR REPAIR, AS SOON AS PRACTICABLE, COVERED EQUIPMENT WHICH IS NOT OPERATING, UNDER NORMAL USE AND SERVICE, IN ACCORDANCE WITH FACTORY SPECIFICATIONS BECAUSE OF A MANUFACTURING DEFECT IN MATERIALS OR WORKMANSHIP, SUBJECT TO THE TERMS, CONDITIONS AND LIMITATIONS DESCRIBED IN THIS LIMITED WARRANTY. THIS LIMITED WARRANTY DOES NOT INCLUDE ON−SITE REPAIR OF COVERED EQUIPMENT.
- The forgoing paragraph sets forth the exclusive remedy of Customer and the sole liability of MEAU for any and all claims based on MEAU’s performance of services, or for the failure of or defect in materials, parts or services furnished, under this Agreement, whether such claim is based on contract, warranty, tort (including negligence), strict liability or otherwise. This limited warranty is in lieu of all other warranties whether written, oral, implied, or statutory. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MEAU MAKES NO OTHER WARRANTY of any kind whatsoever, EXPRESS OR IMPLIED, to customer, its end users or any third parties, WITH RESPECT TO THE PARTS OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MEAU OR ANY OF ITS EMPLOYEES OR AGENTS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY SET FORTH ABOVE, AND NO SUCH PERSON HAS AUTHORITY TO MODIFY ANY ASPECT OF THE WARRANTY PROVIDED ABOVE OR CREATE ANY OTHER WARRANTIES, EXCEPT THROUGH A WRITTEN AMENDMENT OF THIS AGREEMENT.
Regulatory Laws and Standards: MEAU makes no promise, representation or warranty that the Parts and Service will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by a duly authorized representative of MEAU. Prices do not include the cost of any inspections or permits.
LIMITATION OF LIABILITY:
- IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL MEAU BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OF PRODUCTS, LOSS OF USE OF COVERED EQUIPMENT, IMPAIRMENT OF OTHER GOODS OR OTHERWISE, LOST PRODUCTION, LOSS OF CUSTOMERS, LOST GOODWILL OR DOWN TIME.
- Under no circumstances shall MEAU be responsible directly or indirectly for any damage to the Covered Equipment or any other Customer property, nor for any injuries to or death of any person in connection with MEAU’s performance under this Agreement, except where such damage, injury or death is directly and solely attributable to the gross negligence of MEAU. MEAU’s entire liability and Customer’s sole and exclusive remedy for any and all claims in connection with or arising out of this Agreement or MEAU’s furnishing of the services and products described in this Agreement shall be limited to Customer’s actual and direct damages, not to exceed the greater of the net book value of the Covered Equipment (cost of Covered Equipment less depreciation to date) or thrice the annual charges for the period of coverage specified in this Agreement, reduced by any damages attributable to the negligence of Customer’s employees or agents. In no event shall MEAU be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of the Covered Equipment.
Export Control: Parts are sold to Customer in the United States. Any exporting of the Covered Equipment, Parts or any technology related to Parts or the Covered Equipment is by Customer and not MEAU. Customer is solely responsible, at its own expense, for complying with all applicable export laws and regulations relating to the export of the Covered Equipment, Parts and components thereof, including the United States Export Administration Act and the Export Administration Regulations promulgated from time to time thereunder, as the same may be amended, and with obtaining any necessary export license, permit or other approval which may be required in connection with the export or re−exportation of any Covered Equipment or Parts. Customer shall execute any documents requested by MEAU for the purpose of complying with the United States laws and regulations. If such documents are not properly completed and submitted to MEAU as requested, MEAU may terminate the sale of the Parts and the servicing of the Covered Equipment to Customer at any time with no further liability of MEAU to Customer.
Term: This Agreement shall commence on the Effective Date and continue for a period of one or two years thereafter, as applicable pursuant to the Option selected by Customer and designated in the Agreement.
Default and Termination: In addition to all other rights and remedies provided to MEAU at law or under this Agreement, MEAU, at its option, may terminate this Agreement immediately without further notice to Customer if: (a) Customer fails to make any payment on the date due; (b) Customer makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they mature, a trustee or receiver of all or a substantial part of Customer’s assets is appointed by any court, any bankruptcy or reorganization proceedings are instituted by or against Customer, Customer becomes insolvent or unable to pay its debts as they mature; (c) MEAU has reasonable basis for insecurity with respect to Customer's performance of its obligations to MEAU and Customer fails to provide MEAU with adequate assurance of Customer's performance within ten (10) days of MEAU's demand for such assurance; or (d) Customer defaults in any of its obligations under this Agreement and fails to cure such default within ten (10) days after receipt of notice thereof.
Force Majeure: MEAU shall not be liable for damage as a result of any delay or failure of performance or fulfil its obligations under this Agreement due to any cause beyond MEAU’s reasonable control, including, without limitation, acts of God, acts of Customer or any of its representatives or agents, embargo or other governmental act, regulation or order, fire, flood, freezing, storm, accident, strike, slow down, war, riot, delay in transportation, inability to obtain necessary labor, materials, fuel or manufacturing facility or any other circumstance, whether similar or dissimilar to the foregoing, which is beyond MEAU’s reasonable control. In the event of such delay, the date of performance shall be extended for a period equal to the time lost by reason of delay, and, if such delay is caused by an act of Customer or any of its representatives or agents, Customer shall reimburse MEAU for any additional costs arising from such delay.
Entire Agreement: The terms and conditions of this Agreement and schedules if any, attached to or referenced herein, constitute the entire agreement between the parties with respect to the subject matter contained herein. All prior and contemporaneous agreements, representations, statements, negotiations, understandings and undertakings with respect to the subject matter of this Agreement are superseded. Each party acknowledges that there are no warranties, representations, covenants or understandings of any kind, nature or description whatsoever made by either party to the other except such as are expressly contained in this Agreement. No modifications or changes to this Agreement shall be effective unless in writing signed by authorized representatives of both parties.
Assignment: This Agreement is not assignable by Customer. Any attempt by Customer to assign any of its rights, duties or obligations under this Agreement is void. Customer acknowledges and agrees that subcontractors or authorized service providers selected by MEAU may perform the services described in this Agreement.
Notices: Whenever under the terms of or in connection with this Agreement any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by facsimile, by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the parties at the address listed beneath the signature of each party in this Agreement, or to such other address as the parties may specify from time to time in a notice given in accordance with this paragraph.
- If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. The sale of Parts to Customer shall not be governed by, and the parties hereby disclaim the effect of, the United Nations Convention on Contracts for the International Sale of Goods, as amended, the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, and the Uniform Computer Information Transactions Act.
- Except as otherwise specifically stated herein, all disputes or controversies arising out of or in any manner relating to this Agreement which the parties do not resolve in good faith within thirty (30) days after either party notifies the other of its desire to arbitrate such disputes or controversies shall be settled by binding arbitration before a three (3) arbitrator panel in accordance with the then standard prevailing commercial rules, as modified or supplemented by this article, of the Judicial Arbitration and Mediation Services (“JAMS”). The arbitration shall be held in Chicago, Illinois. The arbitration award shall be in writing and shall specify the factual and legal bases of such award. The arbitration award shall be final and binding, and a judgment consistent therewith may be entered by any court of competent jurisdiction. The parties agree that the arbitration award shall be treated confidentially, and the parties shall not, except as otherwise required by law or court order, disclose the arbitration award to any third party, excluding personnel in their affiliated companies and their attorneys and accountants with a need to know, provided that such recipients agree to be bound by the same restrictions as are contained in this Agreement. The arbitrator shall not have the power to render an award of punitive damages. To the extent of any conflict, this article shall supersede and control JAMS rules. Nothing in this article shall be construed to preclude or in any way prohibit either party from seeking any provisional remedy, such as injunction or a temporary restraining order.
- No waiver of, or the failure of either party to require, strict compliance with, any provision of this Agreement in any respect shall be deemed to be a waiver of such party's right to insist upon strict compliance with such provision or with all other provisions of this Agreement. No waiver by either party of any breach or default of this Agreement shall constitute a waiver of any other or subsequent breach or default. No waiver shall be binding unless executed in writing by the party against whom the waiver is sought to be enforced.
- The headings contained in these terms and conditions are included for mere convenience of reference and shall not be considered in any construction or interpretation of them.
- The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against either party.
- MEAU and Customer are independent contractors, and their relationship is not one of principal and agent. No act or obligation of either party is in any way binding upon the other party.