TERMS AND CONDITIONS OF SALE. The following Terms and Conditions of Sale shall govern the sale of all equipment, parts, accessories and other products (“Equipment”) from Bull Moose Heavy Haul, Inc. d/b/a X-L Specialized Trailers (“XL”) to the customer identified on the signature line below (the “Customer”). For purposes of these Terms and Conditions of Sale, a “Unit” means one individual trailer delivered pursuant to a work bid from XL (hereafter, an “Equipment Bid”), together with any related parts and accessories that XL customarily includes with trailers of the same type. Customer’s acceptance of the offer contained any Equipment Bid is expressly limited to the terms and conditions stated herein, and any acceptance by Customer or document delivered by Customer purporting to state additional or different terms shall have no effect.
Equipment Warranty. XL makes no guarantee or warranty of its equipment other than the Unit-specific warranty published in writing at the time of Delivery of each Unit. XL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR THAT THE EQUIPMENT WILL BE FIT FOR ANY PARTICULAR PURPOSE. XL’S SOLE LIABILITY WITH RESPECT TO ANY EQUIPMENT WILL BE TO, AT XL’S OPTION, FURNISH REPLACEMENT PARTS AND SPECIFIED LABOR TO THE EXTENT REQUIRED BY XL’S THEN-APPLICABLE WRITTEN WARRANTY FOR THE APPLICABLE EQUIPMENT. IN NO EVENT WILL XL BE LIABLE FOR ANY OTHER DIRECT, INDIRECT OR CONSEQUENTIAL INJURY, LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, INCOME, PROFIT OR PRODUCTION, INCREASED COST OF OPERATION, SPOILAGE OF OR DAMAGE TO MATERIAL(S), ARISING IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, (OR THE INABILITY TO USE) OR REPAIR OR REPLACEMENT OF THE EQUIPMENT, NOR PUNITIVE DAMAGES OF ANY KIND. Any operation or use of Equipment expressly prohibited in the operating instructions furnished with the Equipment, any adjustment or assembly procedures not recommended or authorized in the operating or service instructions or any use non-approved replacement parts shall void all warranties.
Prices; Modification. The prices listed in an Equipment Bid may be modified by a Change Order or by the imposition of a Raw Materials Surcharge, as set forth below.
Change Orders. Modifications to an Equipment Bid may be made only pursuant to a written change order signed by an authorized representative of XL and Customer (a “Change Order”), which shall contain a description of the modifications and any corresponding change in price. If XL determines that modification of an Equipment Bid is necessary to fulfill the Customer’s requirements, Customer must sign any Change Order deemed necessary by XL as a condition of proceeding. If Customer refuses or fails to sign any Change Order within a reasonable period of time following XL’s request, XL may cancel an Equipment Bid, with no further obligation of XL, and Customer shall pay to XL, at XL’s option, either XL’s damages resulting from cancellation or the full amount of any deposit made by Customer.
Raw Materials Surcharge. Prior to commencement of the manufacturing process, XL may impose an additional charge on the price of the Equipment stated in an Equipment Bid, to account for increases in the price of raw materials or component parts which may have occurred between the time an Equipment Bid was prepared and XL’s commencement of the manufacturing process (a “Raw Materials Surcharge”).
Order Confirmation. No sooner than 90 days and no later than 15 days prior to the commencement of the manufacturing process to fulfill Customer’s order, XL shall send Customer a written confirmation of Customer’s order (an “Order Confirmation”), which shall provide an updated estimated Delivery date and state the amount of any Raw Material Surcharge imposed by XL. If Customer wishes to proceed with its order, as described in the Order Confirmation, Customer must return to XL a copy of the Order Confirmation executed by an authorized representative of Customer within the time period specified in the Order Confirmation. If Customer does not return an executed copy of the Order Confirmation to XL within the time period specified, XL may cancel an Equipment Bid, without penalty.
Cancellation of Orders. Either party may cancel an Equipment Bid, without penalty, at any time prior to the execution by Customer of an Order Confirmation. Customer may cancel its order after signing an Order Confirmation but prior to XL’s commencement of the engineering process for the order, but in such event Customer must pay XL a cancellation charge in amount not to exceed 5% of the full amount of the order. Once Customer has signed an Order Confirmation and XL has commenced the manufacturing process for the order, Customer may not cancel its order. XL may condition its consent to any cancellation on payment by Customer of the greatest of: (a) the full amount of XL’s damages from cancellation, (b) the full amount of any deposit made by Customer, or (c) a cancellation charge of up to 5% of the amount of the order. Any attempt by Customer to cancel its order without XL’s consent after the commencement of the manufacturing process shall be deemed an anticipatory breach of contract by Customer. For purposes of these terms and conditions, the “engineering process” is deemed to include, without limitation, the preparation by XL of detailed drawings or development of bills of material. The “manufacturing process” is deemed to include, without limitation, cutting of metal into shapes, welding, or subsequent processes performed by or for XL.
Delivery; Risk of Loss; Title. Delivery of each Unit to Customer shall be deemed completed when XL notifies Customer that the manufacturing process for any Unit has been completed and the Unit is available for pickup at XL’s facility in Manchester, Iowa or other facility designated by XL (“Delivery”). Notice may be in the form of electronic mail, U.S. mail (postage prepaid), or by express delivery service. Risk of loss and title for each Unit (regardless of whether the Unit is part of a larger order of Equipment) shall pass to Customer upon Delivery. Unless otherwise agreed in an Equipment Bid or any Change Order, Customer shall be responsible to pick up and arrange all inland and international transportation from the place of Delivery, and Customer shall bear all transportation charges, customs duties, customs clearance charges and taxes. Customer must pick up all delivered Units within 30 days of XL’s notice of Delivery or, alternatively, make arrangements to store such Units at XL’s facilities, during which time risk of loss will remain with Customer. Notwithstanding the timing of Delivery or the transfer of title or risk of loss, XL shall not be required to issue a manufacturer’s statement of origin (or other similar documentation) for any Unit until XL has been paid in full for that Unit.
Security Interest. XL shall be granted a security interest in each Unit sold to Customer. The security interest in each Unit shall secure the amount Customer owes for the purchase price of that Unit and, in addition, all other obligations of Customer to XL, including all attorneys’ fees incurred by XL in the enforcement of an Equipment Bid or these Terms and Conditions. XL is authorized to make any filings or take any other actions necessary to perfect or enforce its security interest, including notification to other parties that may have an interest in the Units. In order to protect XL’s security interest, Customer will properly store and care for each Unit and its components, repair parts and accessories and keep the same insured from the moment of Delivery under a fire and extended coverage policy to the extent of the Equipment’s fair insurable value or Customer’s total indebtedness to XL, whichever is less.
Payment. Prices, charges and payment for all Equipment will be in U.S. Dollars and, in XL’s sole judgment, shall be made by check, by wire transfer to XL’s account or by ACH draft against Customer’s account. Payment for each Unit is due per the terms established for the Customer, unless otherwise agreed to in writing. Any payments not made when due may accrue interest at a lawful rate determined from time to time by XL and Customer agrees to pay all such interest charges. XL shall be entitled to set off any amounts owed to XL by Customer against any deposits made by Customer. XL has the right, at any time prior to Delivery, to require Customer to pay a deposit in an amount determined by XL.
Taxes. Customer will be solely responsible for the payment of, and will indemnify and hold XL and XL’s affiliates harmless from, any and all tax liability arising out of the sale, use, storage, consumption or delivery of Equipment by Customer.
Force Majeure. XL shall not be liable in any respect for failure or delay in the manufacture or shipment of Equipment if hindered or prevented, directly or indirectly, by an event beyond its reasonable control and not reasonably foreseen at the date of an Equipment Bid. XL may, during any period of shortage due to any such cause, allocate its available supply of raw materials or equipment among itself and its Customers on whatever basis it deems appropriate.
Severability. If any provision hereof is found to be invalid or unenforceable, such invalidity or unenforceability will not affect any other provisions, all of which will remain in full force.
Entire Agreement; Amendment. These Terms and Conditions (together with an applicable Equipment Bid) constitute the entire agreement between XL and Customer concerning the subject matter hereof, and supersedes all prior and contemporaneous agreements between the parties. These Terms and Conditions may be amended only by an instrument in writing signed by both parties which expressly refers to these Terms and Conditions and specifically states that it is intended to amend them.
Governing Law. The construction, interpretation and performance of these Terms and Conditions, shall be in accordance with the laws of the State of Iowa, without regard to any choice or conflict of law provisions.
Venue. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of these Terms and Conditions or the relationship of the parties must be brought in the United States District Court for the Northern District of Iowa, if a basis for federal court jurisdiction is present and, otherwise, in the District Court of the State of Iowa for Delaware County. Both parties hereto irrevocably submit themselves to, and consent to, the jurisdiction of such courts.
Limitation of Damages. Customer and XL each waive, to the fullest extent permitted by law, any claim for punitive or exemplary damages against the other and agree that in the event of any dispute between them, each will be limited to the recovery of actual damages sustained. Customer waives, to the fullest extent permitted by law, any claim for any direct, indirect or consequential injury, loss, damage or expense, including, without limitation, loss of use, income, profit or production, increased cost of operation or spoilage of or damage to material(s), arising in connection with these Terms and Conditions, any Equipment Bid, the Equipment or the relationship of the parties.
Attorneys’ Fees. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to these Terms and Conditions, any Equipment Bid, the Equipment or the relationship of the parties will be entitled to recover its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs.