4.4 SR 04-21-2025The Elk River Vision
A welcoming community with revolutionary and spirited resourcefulness, exceptional service, and community
engagement that encourages and inspires prosperity
[ITEM_HEAD]
Request for Action
To
City Council
Item Number
4.4
Meeting Date
April 21, 2025
Prepared By
Mitchell Litfin, Street and Park Superintendent
Item Description
2025 Ford F-550 Street Division Chipper and Patch
Tow Vehicle Replacement
Reviewed by
Justin Femrite
Cal Portner
Tina Allard
Action Requested
Approve, by motion, the 2025 Streets Division equipment replacement purchase of a 2025 Ford F-550
Chassis tow vehicle as scheduled in the Capital Imrovement Plan.
Background/Discussion
The Streets Division requests authorization to purchase a 2025 F-550 Chassis 4x4 SD Regular Cab 169" WB
DRW XL with aluminum dump body and aluminum chipper topper to replace the current Unit 242, a 2010
Ford F-550.
The F550 Chassis and dump body with chipper topper are vital for performing various tasks, including
material hauling, pulling the chipper trailer, and the patch trailer.
Once received, we will send old Unit 242 to auction, with proceeds returning to the Feet Replacement Fund.
Financial Impact
$96,315.58 from the 2025 Equipment Replacement Fund Price per MnDOT contract # T-636(5) & 257425
Mission/Policy/Goal
Responsibly grow
Attachments
1. F-550 4x4 Reg Cab 84 CA DRW XL
2. QT 95293 ELK RIVER 1 TON WITH CHIPPER TOP REVISED
Page 72 of 197
Midway Ford Commercial Travis Swanson
Fleet and Government Sales 651-343-5212
2777 N. Snelling Ave. tswanson@rosevillemidwayford.com
Roseville MN 55113
Fax # 651-604-2936
2025 F-550 4x4 Regular Cab- 84" CA DRW XL F5H
Standard
Automatic Transmission 40/20/40 Vinyl Front Seat Front Tow Hooks
Dual Front Air Bags 4-Wheel ABS Brakes Rubber Floor Covering
AM/FM Radio Air Conditioning Black Bumper
Tilt Wheel 225/70r19.5 All Season Tires 7.3L V8
Upfitter Switches Brake Controller Cruise
Power windows Power Locks PTO Provision
Options Code Price Select Exterior Colors Code Select
Antimatter Blue Metallic HX
Race Red PQ
Agate Black UM
Carbonized Gray Metallic M7
Avalanche DR
Oxford White Z1
Extended Service Contracts Cost Select
7 year/75,000 mile $3,400
PremiumCare Warranty
(Bumper to Bumper)
Option Total $0
You must have a active FIN code to participate in this
Base Price Totals purchase contract : FIN code #
$54,612.00 Purchase Order required prior to order placement
Options Price Totals $0.00
Extended Warranty PO #
Transit Impr Excise Tax $20.00
Tax Exempt Lic $47.00
6.875% Sales Tax $3,754.58 Name of Organization
Document fee $275.00
Sub total per vehicle $58,708.58
Number of Vehicles 1 Address
Grand Total for all units $58,708.58
City, State, Zip
Acceptance Signature Contact Person/ Phone #
Print Name and Title Date Contact's e-mail address and fax #
Page 73 of 197
TRKQT3MOD022324
Ship To: Cust: Phone:Bill To: Phone:
ATTN:
Reference No.
Accepted by Date
PO#Salesman Created Last Revised Appx CompTerms
Serial No.
Price:
Total Discounts:
Net Cost:
Freight
Total:
ELK RIVER, CITY OF
19000 PROCTOR RD
ELK RIVER
ELK RIVER, CITY OF
19000 PROCTOR RD
ELK RIVER
CHRIS TEFF 550 FORD
CHRIS GUGGEMOS
QT 95293
NET 30 DAYS 4/03/25 4/08/25
3066
Order Comments: STATE OF MN CONTRACT
#257425
Qty Part No. Description Price Ea. Net Amt.
1 1997229 - Body 11'6" FSS w/15" high 12 ga SS Fold-Down Sides, 21" $15,573.00 $15,573.00
high 10 ga SS Lever Top Pin release Tailgate, 40" high 10 ga SS
Front, & 3/16" Hardox-450 floor. S-T-T light on Front Headboard.
Cabshield, 12 VDC Tailgate trip release, & rear mudflaps included.
Mill finish, with underside blasted, seam-sealed, primed and painted
gloss black.
1 9902777 - Body Option Aluminum Fold-Down Sides in lieu of Stainless
Steel
*** can we add a loop for a step on top of passenger side.. See Chris
***
1 9906513 - Hoist TMTE 11' 519SF HOIST W/SUB FRAME, ELECTRIC PUMP Dump $5,851.00 $5,851.00
angle: 45°, DOUBLE acting, W/rear hinge point & OSHA
1 9901454 - INSTALLATION OF DUMP BODY & ELECTRIC HOIST, w/FMVSS 108 $3,977.00 $3,977.00
Lights & Rear Flaps
1 9904694 - INSTALLATION of Camera $235.00 $235.00
INSTALL FACTORY CAMERA
1 1984878 - ALUM chipper topper - - For Edge FSC OR FSS Body $8,105.00 $8,105.00
1 9902494 - Hitch 7 Contact RV (flat pin) socket installed $230.00 $230.00
1 9900775 - Hitch TMTE Medium Duty STD Hitch Plate assembly $687.00 $687.00
1 9901172 - Hitch Installation of med duty hitch (Weld On) $283.00 $283.00
**NOTE: HITCH PLATE FACE TO BE LOCATED: ___________________ IN
*--- Continued ---*
MN 55330 USA MN 55330
0/00/00
** QUOTATION **
Page 74 of 197
TRKQT3MOD022324
Ship To: Cust: Phone:Bill To: Phone:
ATTN:
Reference No.
Accepted by Date
PO#Salesman Created Last Revised Appx CompTerms
Serial No.
Price:
Total Discounts:
Net Cost:
Freight
Total:
ELK RIVER, CITY OF
19000 PROCTOR RD
ELK RIVER
ELK RIVER, CITY OF
19000 PROCTOR RD
ELK RIVER
CHRIS TEFF 550 FORD
CHRIS GUGGEMOS
QT 95293
NET 30 DAYS 4/03/25 4/08/25
3066
$37,607.00
REFERENCE TO REAR TIRE FACE.
Qty Part No. Description Price Ea. Net Amt.
1 9900779 - Hitch 2" Square Receiver tube w/pin & clip. NOTE: DERATES $271.00 $271.00
hitch, as per hitch bar utilized. Installed
1 9901897 - TMTE-6 2 L32LAF TOP MOUNT LED STROBES, 2 5VA02ZAD REAR $1,703.00 $1,703.00
STROBES WITH GROMMETS INSTALLED
1 9901171 - Fenders M1900 W/Brkts for 19.5" Installed $692.00 $692.00
1 WARRANTY - TOWMASTER EXCLUSIVE WARRANTY: 5 yr Steel/Stainless Steel
Body Structure; 5 yr Whelen LED Light Systems;
4 yr SwapLoader Hoists; 1 year Swenson Spreaders, 2 yr Hyd, FALLS
Snow Equip, Tele/Scissor Hoists, and all other items.
$37,607.00
$37,607.00
MN 55330 USA MN 55330
0/00/00
** QUOTATION **
Page 75 of 197
General Terms and Conditions for the Sale of Goods
by
Subsidiaries of ASH North America, Inc
1.1. These General Terms and Conditions for the Sale of Goods
(these "Terms") govern the sale and delivery of all goods and products(the
"Products"), and all transactions incidental thereto, by such subsidiary of ASH North
America, Inc. identified on the respective Confirmed Order (as defined below) as the
seller or supplier ("Seller") to any of its customers (each a "Customer"). The liability
of each such subsidiary under these Terms or any Confirmed Order shall be several
and not joint. Customer acknowledges and agrees that nothing in these Terms or any
Confirmed Order shall be construed as implying joint liability in any case of ASH
North America, Inc. or any of its subsidiaries. Each Seller shall be solely responsible
for its own acts or omissions under the respective agreement with Customer.
1.2. No other terms or conditions shall be of any force or effect unless otherwise
specifically agreed upon by Seller in a writing duly executed by an authorized officer
of Seller. These Terms supersede any and all prior oral quotations, communications,
agreements, or understandings of the parties in respect to the sale and delivery of
the Products. The Seller may issue additional Terms and Conditions of Sale for
certain products. These shall apply in addition to to the present Terms. Any additional
or different terms or conditions contained in Customer's Order (as defined below),
response to Seller´s confirmation, or any other form or document supplied by
Customer are hereby expressly rejected and are rendered null, void, and of no effect.
These Terms may not be modified, amended, waived, superseded, or rescinded,
except by written agreement signed by an authorized officer of Seller.Delivery of the
Products by Seller does not constitute acceptance of any of Customer´s terms and
conditions and do not serve to modify or amend these Terms.
1.3. The issuance of an Order (as defined below) by Customer to
Seller or any communication or conduct of Customer which confirms
an agreement for the delivery of Products by Seller, as well as acceptance in whole
or in part by Customer of any delivery of Products by Seller, shall be construed as
Customer´s acceptance of theseTerms.
Status 2024
1. SCOPE AND VALIDITY
2. OFFERS, ORDERS AND CONFIRMATION
2.1. Unless otherwise specified by Seller in writing, all offers made by Seller
are not binding and may be revoked by Seller at any time without any liability
to Customer.
2.2. Customer shall issue to Seller orders for the purchase of Products, in
written form via the order process determined by Seller from time to time
(each, an "Order"). By issuing an Order to Seller, Customermakes an offer to
purchase the Products pursuant to these Terms and the terms set forth on
such Order. Provided that the Order contains the same terms as in Seller´s
corresponding offer, the Order shall be binding on Customer for six (6)
weeks after Seller´s receipt of such Order.
2.3. Seller may refuse an Order for any or no reason. No Order is binding
upon Seller until Seller´s acceptance of the Order in writing, the issuance of
any governmental permit, license, or authority to Seller, as may be required
under applicable laws, rules and regulations, and the receipt by Seller of a
resale license to be provided by Customer (a "Confirmed Order").
2.4. Specifications and other information on drawings, data sheets, pictures,
plans, brochures, catalogs, or Seller´s website shall not be binding on Seller
unless such specifications and information have been agreed to in writing by
Seller in a Confirmed Order. Notwithstanding a Confirmed Order, Seller shall
have no obligation to deliver Products to Customer or otherwise fulfill any of
its obligations set forth in a Confirmed Order if Customer is in breach of any
of its obligations hereunder or any Confirmed Order.
2.5. Customer may submit to Seller written requests to change the terms of a
Confirmed Order (each such request, a "Change Order Request"). Seller
may, at its sole discretion, consider such Change Order Request, provided
that Seller will have no obligation to perform any Change Order Request
unless and until Seller has agreed in writing to adopt such Change Order
Request. If Seller elects to consider such a Change Order Request, then
Seller shall promptly notify Customer of any adjustment to the applicable
purchase price for the Products.
2.6. In the event Customer cancels any Confirmed Order for any reason,
Customer shall reimburse to Seller all of Seller´s costs and
expenses associated with or incurred due to such cancellation, including but not limited
to the cost of raw materials, labor, and storage if cancellation occurs before Seller´s
commencement of production. In the event Customer cancels any Confirmed Order for
any reason and Seller has started the production of the Product on the respective
Confirmed Order, Customer shall pay to Seller the full purchase price.
2.7. Each Confirmed Order shall be considered a separate agreement between the
parties, and any failure to deliver the Products under any Confirmed Order shall have no
consequences for other deliveries of Products.
3. PRICES
3.1. Unless otherwise agreed to by the parties in the applicable Confirmed Order,
the prices of the Products shall be FCA (agreed delivery location on the applicable
Confirmed Order), Incoterms 2022.
3.2. Unless otherwise agreed by the parties in a Confirmed Order, the price of the
Products shall not include transportation, insurance, packaging, and Tooling (as
defined below) and other materials used for the manufacturing and delivery, sales
or Heavy Vehicle Use Tax (HVUT), other use tax or any other similar applicable
federal, state or foreign taxes, duties, levies, or charges in any jurisdiction in
connection with the sale or delivery of the Products ("Taxes"), Such Taxes shall be
payable by Customer, and if Seller is responsible for the collection thereof, such
Taxes shall either be added to the price invoiced or be separately invoiced by
Seller to Customer. Any special requests concerning shipping, transportation, and
insurance shall be communicated to Seller in a timely manner and subject to
Seller´s prior written approval. Customer shall bear all costs resulting from such
requests.In case of lead delivery times of more than two (2) months, Customer
hereby acknowledges and agrees that Seller, may, at its sole discretion, increase
or decrease the agreed prices on any Confirmed Order in the event of material
price changes in wages, materials, energy or raw material after the date of the
Confirmed Order.
4. PAYMENT TERMS
4.1. Except as set forth in Section 4.2 or unless otherwise agreed in
writing by Seller, the purchase price for the Products and all other
amounts due under a Confirmed Order shall be due and payable in US
dollars within thirty (30) days following the date of Seller´s invoice for
such Products without any discount, deduction or offset whatsoever. In
no event shall any loss, damage, injury or destruction, Force Majeure
(as defined below), or any other event beyond Customer´s control release
Customer from its obligation to make the payments required herein. Payment of all
amounts due hereunder shall be made by bank transfer or in any other manner
set forth on Seller´s invoice. Customer shall be solely responsible for any bank
fees, or other fees, incurred due to the wire transfer or any other selected payment
method. If Seller agrees to payment by credit card, Seller shall charge an
appropriate transaction fee, which the Customer shall also pay.
4.2. In the event Seller becomes aware of circumstances or has reason to believe
that there are circumstances that may have an adverse effect on Customer´s
financial condition, Seller may require the Customer to pay the total amount of the
purchase price or fees, or a portion thereof prior to the delivery of the Products.
Seller may, without any liability to Customer, refuse the delivery of any Product in
the event the Customer fails to make the payment as required under this Section
4.2.
4.3. Time is of the essence for the payment of all amounts due to
Seller under any Confirmed Order. If Customer fails to make payments
of any amount when due, Customer shall pay interest to Seller at the
rate of one percent (1%) per month or such lesser amount as may be
permitted by applicable law starting from the due date until payment to
Seller of such amount in full. In addition to the interest, Seller may, at
its sole discretion, charge the Customer a flat fee of $40 for each reminder notice
issued to Customer due to late payments. If Customer fails to comply with these
Terms or a Confirmed Order, or if Customer becomes insolvent, all balances then
due and owing to Seller shall become due immediately, notwithstanding any
payment terms agreed by the parties. All costs and expenses incurred by Seller
with respect to the collection of overdue payments (including, without limitation,
reasonable attorney´s fees, expert fees, and other expenses of litigation) shall be
borne by Customer. Every payment by Customer shall first be
Page 76 of 197
5.1. If Seller extends credit to Customer for the purchase price for any Products
(including but not limited to pursuant to Section 4.1.), or any other amounts due to
Seller, Customer hereby grants to Seller as security for the timely payment and
performance of all Customer´s payment obligations to Seller, a first priority security
interest (the "Security Interest") in all Products heretofore or in the future delivered to
Customer and in the proceeds thereof for as long as such Products shall not have
been sold by Customer in the ordinary course of business (the "Collateral"). Seller
shall be entitled to file any and all financing, continuation, or similar statements under
the Uniform Commercial Code in any jurisdiction and take any and all other action
necessary or desirable, in Seller´s sole and absolute discretion, to perfect its Security
Interest in the Collateral and to establish, continue, preserve, and protect Seller´s
Security Interest in the Collateral. Customer agrees to take any and all actions and
provide Customer with all information necessary to enable Seller to perfect and
enforce its Security Interest in all jurisdictions and vis-à-vis any of Customer´s
creditors, and hereby irrevocably grants to Seller a power of attorney to execute all
necessarystatements or documents in Customer´s name for the perfection and
enforcement of such Security Interest. The Security Interest shall remain in force until
payment in full of the entire purchase price for such Products, and any other amounts
due to Seller by Customer. Seller may, without notice, change or withdraw
extensions of credit at any time.
applied to pay for Seller´s cost of collection, then interest owed by Customer, and
then to the oldest outstanding claim.
4.4. Notwithstanding anything in the foregoing Section 4.3 or Section 5, if the
parties agreed on installment payments in a Confirmed Order and Customer fails
to make any installment payment when due, the remaining balance including
accrued interest, and any expenses incurred by Seller shall be due and payable
to Seller promptly upon Customer´s receipt of written notice of delinquency from
Seller.
5. SECURITY INTEREST
2
6. OBLIGATIONS OF CUSTOMER
6.1. Customer shall use the Products solely for their intended purpose and pursuant to
Seller´s instructions, and agrees to use only qualified personnel for the handling of the
Products. Customer shall ensure that its customers, employees, agents, and other
representatives comply with this Section 6.1. and shall be responsible for their acts
and omissions.
7. DELIVERY AND ACCEPTANCE
7.1. Unless otherwise agreed in writing by Seller, all deliveries of Products shall be
made FCA (agreed delivery location) (Incoterms 2020) and title to and risk of loss
for the Products shall pass to Customer upon delivery pursuant to this Section 7.1.
7.2. Any delivery and performance times or dates communicated by or on behalf of
Seller are estimates and shall not be binding on Seller. Seller may make partial
delivery of Products to be delivered under any Confirmed Order and invoice
Customer separately for such partial deliveries or performance. If Customer has not
received the Products after six (6) weeks from the estimated delivery date,
Customer may make a written request to Seller for delivery. Customer hereby
acknowledges and agrees that the actual delivery date of the Products is
conditioned upon the complete, accurate and timely delivery of materials from
Seller´s vendors and suppliers. No delay in delivery of any Productsshall relieve
Customer of its obligation to accept the delivery or performance thereof and make
payments of any amounts due in accordance with these Terms, including but not
limited to delays caused governmental restrictions on exports or imports and similar
measures.
7.3. Customer´s failure to accept the delivery of Products pursuant to a Confirmed
Order shall not release or excuse Customer from its obligation to timely pay all
amounts due in connection with such Confirmed Order. The Products shall be
deemed delivered at the time theyhave been made available to Customer. If
Customer rejects or revokes acceptance of Products, or fails to pay any amounts
when due, Seller, in its sole and absolute discretion, may extend the period of
delivery of Products by such period as Seller may deem reasonable with such
period not exceeding three (3) months from the agreed delivery date, or withhold or
cancel delivery of any Products, or cancel any or all Confirmed Orders without any
further obligations to Customer whatsoever.
In such event, Customer shall be responsible for any and all costs and
expenses incurred, or damages or losses suffered by Seller in connection with
any such delay notwithstanding any action or inaction by Seller with regard to
such delay. Any remaining Products that have not been accepted by Customer
within the extended delivery period determined by Seller will be delivered and
invoiced by Seller to Customer and Customer agrees to accept such delivery and
pay for the purchase price and other amounts payable for the delivered Products.
8. EXAMINATION AND CONFORMITY TO ORDER
8.1. Promptly upon receipt of any Products, Customer shall conduct
a full and complete inspection of such Products as to any defects and to confirm
compliance with all requirements of the applicable Confirmed Order. Customer shall
notify Seller in writing of any packaging defects, apparent defects, or non-compliance
of such Products with the applicable Confirmed Order that Customer has or could
reasonably have discovered during such inspection within seven (7) days from the
date of receipt of such Products, and Customer shall notify Seller in writing within
three (3) days of the date on which Customer shall first have become aware of any
hidden defect or non-compliance which could not reasonably have been discovered
during Customer´s initial inspection of the Products. Such notification shall include
reasonable details (including images) on the alleged defects including lot, batch,or
Order numbers.
8.2. If Customer fails to timely notify Seller of any defects or other non-compliance of
any Products delivered or Customer (or its customers, employees, agents, or
representatives) uses, destroys, or modifiesany Products that Customer knows or
should have known to be defective or non-compliant without Seller´s prior written
consent, Customer shall be deemed to have unconditionally accepted such Products
and waived all of its claims for breach of warranty or otherwise in respect
of such Products.
8.3. Customer may only return the Products to Seller with Seller´s prior written
approval. If the return has been approved by Seller, Customer shall return the
Products to Seller at Customer´s sole risk and expense to the destination directed by
Seller.
8.4. Complaints of Customer in connection with the shipping or
transport shall be directed to the carrier promptly upon receipt of the
delivery or the freight documents.
9. LIMITED PRODUCT WARRANTY
9.1. Seller warrants to Customer that the Products will be free of defects in material
and workmanship and conform with the requirements set forth in the applicable
Confirmed Order for a period of twelve (12) months from the date of delivery for new
business Products and ninety (90) days for after sales Products. (the "Limited
Product Warranty").
9.2. Unless expressly agreed to in writing by Seller, Seller makes no warranty that
the Products comply with applicable law, regulations,or specifications in any
jurisdiction in which the Products may be used, integrated or incorporated. Any
governmental or other approvals necessary in connection with the use, integration or
incorporation of the Products shall be Customer´s sole responsibility.
9.3. The Limited Product Warranty shall be void if the Defect (as defined below)
resulted from (a) improper or inadequate use, storage,handling, operation,
integration, incorporation, assembly, maintenance, or unauthorized alteration,
modification, repair of the Products (including without limitation, the use storage,
handling, operation, or integration of the Products contrary to written instructions
and/or recommendations of Seller or inadequate training of personnel), (b)changes to
construction and materials pursuant to Customer´s requests, (c) use of improper
tools, resources, or accessories including those but not limited to any third party
tools, resources, or accessories that are not approved by Seller or not in accordance
with Seller´s recommendations, instructions, or directions, (d) acts or omissions of
Customer or third parties following delivery of the Product, (e) Customer´s failure to
properly communicate Seller´s instructions and warnings to users of the Products, (f)
Customer´s, its employees, agents, representatives, customers or any third party´s
non-compliance with applicable laws, rules and regulation, (g) Force Majeure, or (h)
ordinary wear and tear of the Products (e.g., sweep bristles).
Page 77 of 197
10.1. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER, ITS
CUSTOMERS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES FOR
ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF
PROFITS, REVENUE, GOODWILL, OR USE, WHETHER IN AN ACTION IN
CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR
OTHERWISE, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. NOTWITHSTANDING ANY OF THE TERMS CONTAINED HEREIN,
SELLER´S LIABILITY FOR ANY CLAIM èWHETHER BASED UPON CONTRACT,
TORT, EQUITY, NEGLIGENCE, OR ANY OTHER LEGAL CONCEPT è SHALL IN
NO EVENT EXCEED THE PURCHASE PRICE PAID BY THE CUSTOMER FOR
THE PRODUCTS, GIVING RISE TO SUCH CLAIM. CUSTOMER HEREBY
ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THESE TERMS
FAIRLY ALLOCATE THE RISKS BETWEEN SELLER AND CUSTOMER, THAT
SELLER´S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR
THIS ALLOCATION AND LIMITATION OF LIABILITY, SELLER WOULD NOT
HAVE ENTERED INTO AN AGREEMENT WITH CUSTOMER FOR
THE SALE OF THE PRODUCTS.
10.2. Seller shall not be liable for, and Customer assumes responsibility and shall
indemnify, defend, and hold Seller harmless for any and all claims, including without
limitation claims for personal injury or property damages, resulting from (a) the
improper or inadequate use, storage, handling, operation, assembly, integration,
incorporation, assembly, maintenance, or unauthorized alteration, modification, or
repair of the Products (including without limitation, the use storage, handling,
operation, or integration of the Products contrary to written instructions and/or
recommendations of Seller or inadequate training of personnel), (b) changes to
construction and materials pursuant to Customer´s requests, (c) use of improper
tools, resources, or accessories including those but not limited to any third party
tools, resources, or accessories that are not approved by Seller or not in accordance
with Seller´s recommendations, instructions, or directions, (d) acts or omissions of
failure to properly communicate Seller´s instructions and warnings to users of the
Products, or (f) Customer´s, its employees, agents, representatives, customers or
any third party´s non-compliance with applicable laws, rules and regulation, (g) Force
Majeure, or (h) ordinary wear and tear of the Products (e.g., sweep bristles).
10.3. In jurisdictions that limit or preclude limitations or exclusion of remedies,
damages, or liability, such as liability for gross negligence or willful misconduct or do
not allow implied warranties to be excluded, the limitation or exclusion of warranties,
remedies, damages, or liability set forth in these Terms are intended to apply to the
maximum extent permitted by applicable law, and these Terms shall be deemed
amended to comply with such limitations or exclusions. Customer may also have
other rights that vary by state, country or other jurisdiction.
1.1. "Confidential Information" means: (i) any know-how, trade secrets, and
other business or technical information of Seller that is confidential or
proprietary or due to its nature or under the circumstances of its disclosure
the Customer knows or has reason to know should be treated as confidential
or proprietary, including but not limited to quotations, drawings, project
documentation, samples and models.
11.2. Confidential Information does not include information that: (i) is or
becomes generally known to the public through no fault or breach of
these Terms by the Customer; (ii) is rightfully known by the Customerat the
time of disclosure without an obligation of confidentiality; (iii) is
independently developed by the Customer without use of Seller´s
Confidential Information; (iv) is rightfully received by the Customer from a
third party without restriction on use or disclosure; or (v) is disclosed with
Seller´s prior written approval.
11.3. Customer shall not use Seller's Confidential Information except as
necessary to use the Products and will not disclose such Confidential
Information to any third party except to those of its employees, agents,
subcontractors, or representatives who have a bona fide need to know such
Confidential Information to enable Customer to use the Products; provided
that each such employee, agent, subcontractor,and/or representative is/are
bound by a written agreement that contains use and nondisclosure
restrictions not less stringent than the terms set forth in this Section 11.3.
The Customer will employ all reasonable steps to protect Seller´s
Confidential Information from unauthorized use or disclosure, including, but
not limited to, all steps that it takes to protect its own information of like
importance. The foregoing obligations will not restrict the Customer from
disclosing Seller's Confidential Information: (i) pursuant to the order or
requirement of a court, administrative agency, or other governmental body,
provided that the Customer gives reasonable notice to Seller to contest such
order or requirement; (ii) to its legal or financial advisors; and (iii) as required
under applicable securities regulations.
11.4. In the event of a violation or threatened violation of Customer´s
obligations under this Section 11, Seller shall be entitled to seek equitable
relief, including in the form of a restraining order, orders for preliminary or
permanent injunction, specific performance and any other relief that may be
available from any court, without the requirement to secure or post any
bond, or show actual monetary damages in connection with such relief.
These remedies shall not be deemed to be exclusive but in addition to all
other remedies available under these Terms, at law, or in equity.
9.4. In the event of an alleged breach of the Limited Product Warranty (a "Defect"),
Customer shall, at Customer´s sole expense, send the Product to Seller. Seller shall
conduct the necessary tests on such Product within a reasonable period. If Seller
confirms the Defect, Sellershall, at its sole option and discretion, repair or replace the
Defective Product. If the repair or replacement of the Defective Product is
commercially unreasonable to Seller, Seller may, at its sole discretion, issue a refund
to Customer in the amount Seller deems adequate. Such repair, replacement, or
refund shall be the sole liability of Seller and the sole remedy of Customer with
respect to a Defect. In no event shall any warranty claims for a Defect be made after
twelve (12) months from the date of Customer´s receipt of the Products. Any
Products or parts returned to Seller for removal or repair under this Section 9.4 shall
be the property of Seller. Any applicable Limited Product Warranty period shall not
start anew with the repair or replacement of the Defective Product (or any portion
thereof).
9.5. Except for Limited Product Warranty, SELLER HEREBY EXPRESSLY
EXCLUDES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT. Seller makes no other warranties with respect
to the Products, and no person is authorized to make any warranties on behalf of
Seller that are inconsistent with the warranties set forth under this Section 9.
10. LIMITATION OF LIABILITY
11. CONFIDENTIALITY
3
12. INTELLECTUAL PROPERTY
12.1 Seller reserves the sole and exclusive ownership of the intellectual
property rights in the Products (including but not limited to the technology
used to manufacture the Products) and any improvements thereof
regardless of inventorship or authorship. Customer shall not (and shall
cause its employees, agents, representatives and customers to not)
reverse engineer, decompile, disassemble, or decode any of Seller´s
intellectual property embedded or used in any of the Product.
13. FORCE MAJEURE
13.1. Seller shall not be responsible for any failure or delay in its
performance under these Terms due to causes beyond its reasonable
control, including, but not limited to, disruptions of the public power
supply, communications, and transportation infrastructure, governmental
measures, malware or hacker attacks, fire, extraordinary weather events,
epidemics, pandemics (or any government restrictions implemented as a
result thereof), nuclear and chemical accidents, earthquakes, war, terrorist
attacks, labor disputes, strikes, lockouts, shortages of or inability to obtain
labor, energy, raw materials or supplies, or other acts of God.
14. MISCELLANEOUS
14.1. If any provision contained in these Terms or any Confirmed Order is
held by final judgment of a court of competent jurisdiction to be invalid,
illegal, or unenforceable, such invalid, illegal, or unenforceable
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16.1. These Terms and the Confirmed Orders shall be governed by
and construed in accordance with the laws of the State of Wisconsin
without giving effect to any choice or conflict of law provision or rule that would
defer to or cause the application of the substantive laws of any jurisdiction other
than Wisconsin. The parties hereby expressly exclude the application of the 1980
United Nations Convention on Contracts for the International Sale of Goods.
16.2. Any dispute, controversy, or claim arising out of or relating to
these Terms and any Confirmed Order, including but not limited to the
execution, performance, or termination thereof or to any issue of liability arising
out of the performance of these Terms or any Confirmed Order, which the parties
have not been able to settle amicably shall be submitted to the exclusive
jurisdiction of the state or federal courts with jurisdiction in the County of Calumet,
Wisconsin, provided that notwithstanding the foregoing, Seller shall be entitled to
seek specific performance and injunctive relief in any court of competent
jurisdiction. Each party hereby waives any and all claims, pleas, or defenses
(including without limitation a plea for forum non conveniens) that would permit
such party to seek the jurisdiction of any courts or arbitration tribunals other than
those set forth in the preceding sentence.
16.3. EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THESE TERMS.
16. APPLICABLE LAW AND JURISDICTION
4
Order, the provisions of the Confirmed Order will govern and control. Seller may
amend or modify these Terms from time to time. Seller may, at its sole discretion,
provide Customer with written notice of any such changes, revisions,
amendments, or modifications, provided, however that any such changes,
revisions, amendments, or modifications shall become effective without any
further action by any party and that they shall not apply to any Confirmed Order
prior to the effective date of such changes, revisions, amendments, or
modifications.
provision shall be severed from the remainder of these Terms or such
Confirmed Order, and the remainder of these Terms or such Confirmed
Order shall be enforced. In addition, the invalid, illegal, or unenforceable provision
shall be deemed to be automatically modified, and, as so modified, to be included
in these Terms, such modification being made to the minimum extent necessary
to render such provision valid, legal,and enforceable.
14.2. Seller may assign its rights and/or delegate its liabilities under
any Confirmed Order at any time. Customer may not assign its rights
or delegate its responsibilities under a Confirmed Order without
Seller´s prior written consent.
14.3. Seller´s waiver of any breach or violation of these Terms or the
provisions of any Confirmed Order by Customer shall not be construed
as a waiver of any other present or future breach or breaches by Customer.
14.4. The parties hereto are independent contractors and nothing in
these Terms will be construed as creating a joint venture, partnership,
employment, or agency relationship between the parties.
14.5. Notices by a party regarding the exercise of rights and obligations under
these Terms must be signed by authorized representatives of such party, and
delivered via courier, mail, or e-mail to the other party´s address indicated in the
applicable Confirmed Order, providedthat a notice by e-mail shall only be validly
given if receipt thereof is acknowledged in writing by the recipient.
15. ENTIRE AGREEMENT; CONFLICTS.
15.1. These Terms, including the applicable Confirmed Order, constitute the
entire and exclusive agreement of the parties regarding thesubject matter hereof
and supersede any and all prior or contemporaneous agreements,
communications, and understandings (both written and oral) regarding such
subject matter. In the event of a conflict between the provisions of these Terms
and the provisions of a Confirmed
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