Terms and Conditions

PROPOSAL/ORDER ACKNOWLEDGMENT

STANDARD TERMS OF SALE 

1. APPLICABLE TERMS. These terms govern the sale by BOYER SALES & SERVICE (“Boyer”) of the equipment and related services, if any (collectively referred to as the “Products”), referred to in Boyer’s quotation, proposal or order acknowledgment, as the case may be (collectively referred to as the “Boyer’s Documentation”). If any terms are included in any purchase order or other offer made by Buyer, Boyer’s acceptance of any such purchase order or offer is conditioned on Buyer’s assent to these terms. Boyer specifically rejects all additional or different terms in any of Buyer’s forms or documents.

2. PAYMENT. All orders are subject to credit approval. Standard terms for all Products & Services are NET 30, and payment must be made within thirty (30) days of the date of invoice. All amounts that are past due shall bear interest at the rate of two percent (2%) per month (twenty-four percent (24%) annual rate) or the maximum rate allowed by applicable law, whichever is less, will be assessed and due on the past due account. Buyer shall pay Boyer the full purchase price as set forth in Boyer’s Documentation. Unless Boyer’s Documentation provides otherwise, freight, storage, insurance and all taxes, duties or other governmental charges relating to the Products shall be paid by Buyer. If Boyer is required to pay any such charges, Buyer shall immediately reimburse Boyer. Buyer shall pay all of Boyer’s reasonable costs (including attorneys’ fees) of collecting amounts due but unpaid.

3. ORDER REQUIREMENTS/EXPRESS/CANCELLATIONS/RETURN POLICY. Orders totaling less than $100 (net price) shall be subject to a minimum billing charge of $100. Express orders – Orders requiring special handling to ensure shipment in less than the normal lead time or same day orders are subject to an additional Special Handling Charge of 20% of sale price, or $50.00, whichever is greater. No Special Handling Charge will be applied if the Express Order does not ship by the date committed to by the Buyer Service Representative. Cancellations – Orders that have been approved and accepted by Boyer are firm commitments and are not subject to cancellation without written consent of Boyer. If cancellation is approved, it is subject to a minimum 25% charge for accrued material and fabrication costs, special engineering costs and testing, handling, and accounting costs if they are applicable. Returned Orders – A 25% restock fee shall apply to returned orders of off-the-shelf Products. 25% restock fee shall apply to returned orders of off-the-shelf Products if concurrently placing orders of equal or greater value. A 50% restock fee shall apply to returned offers of assembled Products. A 100% restocking fee shall apply to returned orders of configured or manufactured Products. Boyer reserves all rights to refuse any return requests.

4. SUBMITTALS. Buyer shall prepare all drawings, specification sheets and related documents (“Submittals”). Upon Buyer’s request, Boyer can prepare the Submittals. Boyer shall have no liability for any claimed loss incurred by the Buyer, including any claim for lost time or expenses until such Submittals are approved by Buyer or the building owner or governmental authority. Changes of any kind to approved Submittals may result in additional expenses to the Buyer, including but not limited to a change in the sale price of equipment, alternate materials of construction, additional materials testing and additional hydraulic or vibration testing. Unless Buyer authorizes and pays such additional charges and compensation, Boyer may cancel the purchase agreement without incurring any financial
liability.

5. DELIVERY. Buyer orders will be shipped freight collect or PPA, unless quoted as ‘freight included’. If Buyer requires a specific carrier, Buyer shall be responsible for all freight costs and filing any claims regarding these shipments. Drop shipments are allowable and subject to the prepaid freight conditions above and additionally must be to a pre-approved “ship to” location.

6. OWNERSHIP OF MATERIALS. All devices, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by Boyer, and all related intellectual property rights (hereinafter collectively referred to as “Trade Secrets”), shall remain Boyer’s or Vendor’s property. Buyer shall not in any fashion, form or manner, misappropriate (or cause the misappropriation of) any confidential information or “Trade Secret” (as defined in the Uniform Trade Secrets Act) of Boyer. Boyer and/or vendor grants Buyer a nonexclusive, non-transferable, revocable license to use any such material solely for Buyer’s use of the Equipment. Buyer shall not disclose any confidential information or trade secret to any third parties without Boyer’s or Vendor’s prior written consent.

7. CHANGES. Boyer shall not implement any changes in the scope of work described in Boyer’s Documentation unless Buyer and Boyer agree in writing to the details of the change and any resulting price, delivery schedule or other contractual modifications. This includes any changes necessitated by a change in applicable law occurring after the effective date of any contract including these terms.

8. WARRANTY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BOYER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED WITH RESPECT TO ANY PUMPS, PRODUCTS, PARTS OR SERVICES PROVIDED BY BOYER or BOYER VENDORS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, APPLICATION OR USE. The Limited Warranty provided herewith and hereby made a part hereof states the sole and exclusive limited warranty applicable to the equipment, as provided by each manufacturer. Such Limited Warranty can be provided upon request. Boyer Service Warranty – Service performed directly by Boyer personnel or sub-contractor representatives shall be covered under a limited warranty for a period of 180 days from completion of service.

9. FORCE MAJEURE. Neither Boyer nor Buyer shall have any liability for any breach (except for breach of payment obligations) caused by extreme weather or other act of God, strike or other labor shortage or disturbance, fire, accident, war or civil disturbance, delay of carriers, failure of normal sources of supply, act of government or any other cause beyond such party’s reasonable control.

10. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, BOYER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, AND BOYER’S TOTAL LIABILITY ARISING AT ANY TIME FROM THE SALE OR USE OF THE EQUIPMENT SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE EQUIPMENT. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE RECOVERY THEORY.

11. MISCELLANEOUS. If Buyer has advised in advance that the equipment is being sold in connection with a contract with the Federal government, these terms shall be deemed to include those federal acquisition regulations that are required by law to be included. These terms, together with any quotation or acknowledgement issued or signed by the Boyer, comprise the complete and exclusive statement of the agreement between the parties (hereinafter referred to as the “Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Boyer. No part of the Agreement may be changed or cancelled except by a written document signed by Boyer and Buyer. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify the Agreement. If any of these terms is unenforceable, such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. Buyer may not assign or permit any other transfer of the Agreement without Boyer’s prior written consent. The Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of law provisions. Any litigation or other proceeding involving any dispute between Buyer and Boyer shall be brought and maintained exclusively in either the state or federal courts located in Arapahoe County, Colorado and Buyer and Boyer expressly consent to the exclusive jurisdiction of such Courts.