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Terms & Conditions

CLARKE POWER SERVICES, INC.
HEAVY DUTY TERMS AND CONDITIONS

Clarke Power Services, Inc. (“Clarke”) will perform the work described in its sales order (the “Services”) and furnish all necessary parts, materials and components subject to the following terms and conditions (the “Terms and Conditions”) below. Customer agrees to these Terms and Conditions by executing the sales order.

  1. Services. Clarke will perform the Services pursuant to these Terms and Conditions, which, together with the sales order, collectively, shall constitute the contract between Clarke and Customer (the “Contract”). ALL SERVICES ARE SUBJECT TO AND CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS. CUSTOMER’S FAILURE TO NOTIFY CLARKE IN WRITING OF ANY OBJECTIONS TO THESE TERMS WITHIN TEN DAYS AFTER CUSTOMER’S RECEIPT HEREOF, AND CUSTOMER’S ACCEPTANCE OF THE SERVICES SPECIFIED IN THE ATTACHED SALES ORDER AND PERFORMED AGAINST ITS ORDER, CONSTITUTES CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THESE TERMS AND CONDITIONS. CLARKE HEREBY EXPRESSLY REJECTS ANY ADDITIONAL, INCONSISTENT OR CONFLICTING TERMS PROPOSED BY CUSTOMER. Clerical errors are subject to correction in all cases. Any provision of these Terms and Conditions that is invalid under applicable law or court order shall not in any way invalidate or affect the remaining provisions of these Terms and Conditions.

  2. Payment Terms. Customer shall pay a non-refundable down payment in the amount indicated in the Sales Order to secure the Services. Unless otherwise specifically stated in the Sales Order, payment of the remaining net invoice is due (a) upon receipt of the invoice or (b) if Customer has approved credit with Clarke, 30 days after the invoice date. If payment is received after the due date, Clarke may impose a late charge equal to 1.5% of the delinquent amount per month (or portion of a month). Customer shall pay all costs of shipment.

  3. Lead Time. Clarke may provide a non-binding estimate of the amount of time it will take to complete the Services. However, the time necessary to complete the Services is contingent upon, among other things, receipt of the Vehicle and/or vehicle components from Customer or Customer’s designees. Accordingly, Clarke and Customer shall work in good faith to determine an appropriate timeline for completion of the Services once Clarke has received all components necessary to assemble the Vehicle.

  4. Delivery. Delivery to Customer shall be specified on the Sales Order. All delivery dates are approximate. Clarke will use reasonable commercial efforts to schedule Customer’s order for delivery as nearly in accordance with Customer’s instructions as possible and advise Customer accordingly. However, Clarke does not guarantee, or assume any liability for failure to meet, any delivery date proposed by Customer or Clarke. If delivery is rescheduled by Customer, Customer shall pay to Clarke all costs incurred by Clarke as a result of the change.

  5. Warranty. Clarke warrants that the Services performed will be of good, workmanlike quality for ninety (90) days from the date of Clarke’s invoice to Customer. Clarke makes no warranty as to the parts or components supplied; any such warranty is limited to that made by the manufacturer. Clarke will extend to Customer any warranty Clarke has received from the manufacturer of the parts or components supplied for each Vehicle. Clarke, at its sole option, will repair, rebuild or replace any Services performed hereunder that are not of good, workmanlike quality during the warranty period. Customer’s exclusive remedy relating to the Services performed hereunder is limited to the cost of any repairs or costs to correct the Services or rebuild or replace parts or components that were damaged due to Services that did not comply with the warranty. CLARKE MAKES NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE SERVICES OR PARTS OR COMPONENTS SUPPLIED. IN NO EVENT SHALL CLARKE BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

    Customer must notify Clarke of any claim under this warranty within thirty days of discovery of such claim and provide documentation that any defect under the warranty occurred within the warranty period. Clarke shall have a reasonable time after receiving notice to correct the Services that did not comply with this warranty or to make any repairs or to rebuild or replace any parts or components that were damaged because the Services did not comply with the warranty. This warranty does not cover any damages or repairs due to accidents, misuse, storage damage, misapplication, negligence, modification or any other damage caused by any person other than Clarke. This warranty does not cover labor, shipping and material costs for the removal and reinstallation of any Vehicle when necessary to make a warranty repair.

    Performance of required maintenance and use of proper fuel, oil, lubricants and coolant are the responsibility of the Customer or user. Clarke is not responsible for any damages or costs to repair, rebuild or replace any parts or components caused by the failure of Customer to perform required maintenance on the vehicle or to meet Clarke’s recommended specifications. Parts and components manufactured by others, but furnished by Clarke, will be repaired or replaced only to the extent provided in the original manufacturer’s warranty. Customer is not permitted to alter, repair or remove any damaged part or component until authorized by Clarke; otherwise the limited warranty will be void. Clarke does not authorize any person to assume or create for it any obligation or liability in connection with the Vehicle other than as expressly set forth herein.

  6. Limitation of Liability. Any action against Clarke must be brought within one year after the cause of action arose. Clarke’s total liability (whether in contract, tort, negligence, strict liability, or otherwise) to Customer for any and all claims for any act or omission by Clarke arising out of or related to the Services will not in the aggregate exceed the price paid by Customer to Clarke under this Agreement for the Services performed on the Vehicle. IN NO EVENT WILL CLARKE BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST BUSINESS, OR LOST SAVINGS (WHETHER DIRECT OR INDIRECT), WHETHER OR NOT CLARKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.

  7. Inspection and Claims for Damaged or Defective Items. Customer shall inspect each Vehicle upon delivery and shall notify Clarke in writing of any readily ascertainable damaged or defective Vehicles within 30 days of delivery. Failure of Customer to do so shall relieve Clarke of any responsibility for such matters.

  8. Indemnification. Customer shall indemnify and hold Clarke harmless from and against all suits at law and in equity and all liabilities, claims, demands and damages arising out of or attributable to (a) Customer’s breach of any term hereof; (b) Customer’s or user’s design, specifications, misapplication or modification of the Vehicle, failure to perform required maintenance services or failure to cooperate with product recalls; (c) actual or alleged infringement of any patent because of the specification, design or modification required by Customer.

  9. Vehicle Changes. Clarke reserves the right to make changes in the design or assembly of any Vehicle covered by the Contract at any time and in any manner Clarke considers necessary or advisable prior to delivery. Clarke shall not be obligated to make any such changes to any Vehicle previously sold to Customer. Any changed Vehicle shall be accepted as standard in fulfillment of Customer’s purchase order.

  10. Price Changes. Clarke reserves the right to make Vehicle price changes at any time. Customer will be notified in writing of any price change at least 30 days prior to shipment of Customer’s order. Customer may cancel its order for any item subject to a price change by written notice to Clarke within 10 days of such notification. All charges will be made at the prices in effect at the time of shipment.

  11. Taxes. Prices quoted do not include any taxes which may now or hereafter be applicable to or imposed upon the Services, including, without limitation, sales, use and similar taxes. Customer shall pay or reimburse Clarke or its subcontractors or suppliers, as applicable, for any such taxes paid by Clarke or its subcontractors or suppliers.

  12. Cancellation by Customer. Customer may only cancel an order upon payment to Clarke by Customer of an amount equal to the amount of all out-of-pocket and other expenses incurred by Clarke in reliance upon Customer’s order plus 5% of the total amount of such expenses. This includes all Services performed to date, all special tooling and components for which commitments have been made by Clarke, any custom option or service already purchased or committed to the project, and all of the Clarke’s costs, expenses and reasonable profit for work in process as of the date of cancellation. Orders are subject to a cancellation fee. The Customer shall also make cancellation payments if required by the applicable quotation or otherwise agreed to in writing and signed by both Customer and Clarke.

  13. Cancellation by Clarke. A Customer’s Sales Order may be cancelled by Clarke at any time if (1) the Customer fails to strictly comply with the terms governing the order, (2) the Customer becomes insolvent or makes an assignment for the benefit of creditors, (3) a petition in bankruptcy or insolvency is filed by or against Customer, (4) amounts due Clarke by Customer are unpaid or (5) The product’s final destination violates export compliance regulations of the United States. In the event of cancellation of a purchase order by Clarke for any of these five stated reasons, the Customer shall be obligated to pay to Clarke the price for all goods that can be completed and shipped within ten (10) days of the date of cancellation, all services performed to date, all special tooling for which commitments have been made by Clarke, any custom option or service already purchased or committed to the project, and all of Clarke’s costs, expenses and a reasonable profit for work in process as of the date of cancellation.

  14. Disputes. These Terms and Conditions shall be governed by, and construed in accordance with, the laws of the State of Ohio without regard to conflicts of law principles that would require the application of any other law. Any controversy or claim arising out of or related to the Contract or the breach thereof, (a) shall be settled by binding arbitration administered by the American Arbitration Association in Cincinnati, Ohio under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, and (b) must be commenced prior to the first anniversary of the date of Customer’s acceptance of the attached Sales Order. Notwithstanding the foregoing, either party at all times shall have the right to seek such remedies through any court, wherever located, including without limitation injunctive relief, as it deems necessary or desirable to protect its confidential information and/or its intellectual property rights. If either party incurs any actual and reasonable expenses (including attorney’s fees, costs, expenses, and/or disbursements) in order to enforce its rights under, or to recover damages for a material breach or default by the other party of any obligations under, this Contract (including, for example, any costs associated with Clarke’s repossession of the Product), the prevailing party shall be entitled to recover from the other party any such expenses incurred by the prevailing party.

  15. Resale. If Customer resells the Vehicle or any part thereof to any third party purchaser, Customer shall include language in an enforceable agreement with its purchaser that makes the language in these Terms and Conditions, including the provisions in paragraph 5, binding on its purchaser and any subsequent purchasers of the Vehicle or its parts.

  16. Authorization. Customer authorizes Clarke and its employees to operate the Vehicle or any components thereof (including the frame, chassis, engine, transmission or other part of the Vehicle) as needed for the purpose of testing and/or inspection. Customer is providing each Vehicle and its components to Clarke at its own risk and assumes all responsibility for insuring the property and all articles herein. Customer will not hold Clarke liable for loss or damage to its property while in Clarke’s care, custody or control. Customer waives all rights of subrogation against Clarke for any such loss or damage.