HomeMy WebLinkAbout04/16/2024 Motion to accept joint purchasing bid results (Sourcewell contract #0662222-AEB-1) and authorize the purchase one (1) 14FT Monroe RDS (Radius Dump Spreader) spreader body with dual auger purchased from Monroe Truck of Monroe Wi at a cost not toM+awn �'xyt�lts�=e
Item Cover Page
Subject Motion to accept joint purchasing bid results (Sourcewell
contract #0662222-AEB-1) and authorize the purchase one (1)
14FT Monroe RDS (Radius Dump Spreader) spreader body with
dual auger purchased from Monroe Truck of Monroe Wi at a
cost not to exceed $85,686.00.
Meeting April 16, 2024 - JOINT VILLAGE BOARD & FINANCE COMMISSION
WORKSHOP AND VILLAGE BOARD MEETING OF THE MOUNT
PROSPECT VILLAGE BOARD
Fiscal Impact (Y/N) Y
Dollar Amount $85,686.00
Budget Source Vehicle Replacement Fund
Category CONSENT AGENDA
Type Action Item
Information
In the current budget, there are sufficient funds available to procure components needed to
complete the build -out of one (1) newly purchased tandem axle 58,000 GVWR dump truck.
This vehicle is typically outfitted for snow and ice control operations on highways and major
arterial collector streets.
The Village Board approved the purchase of a cab and chassis for this replacement unit at the
January 4, 2022, Village Board meeting. The completed cab and chassis was recently
delivered to the Public Works Facility. It took 2 years and 3 months to build.
Remaining components necessary to outfit this vehicle for Public Works Department service
include the dump body, hydraulics (computerized controls, pumps, and hoses), snow plow,
salt spreader, emergency lighting, and miscellaneous connectors (hoses, fittings, etc.).
Discussion
Staff propose to procure a radial dump spreader body for this truck. The bottom of the dump
body forms a radius to direct salt to the auger system on the bottom of the bed. In addition,
metal plates can be affixed over the auger system to enable the truck to haul other materials
during the construction and growing seasons.
The total cost of this proposed purchase is $85,686.00.
These components are available through a Sourcewell joint purchasing contract awarded to
Monroe Truck of Monroe, Wisconsin.
Sourcewell has an existing contract (Sourcewell contract #062222-AEB-1) with Monroe Truck.
The Village is a member of Sourcewell and is eligible to participate in this contract. This
contract satisfies Village of Mount Prospect public bidding requirements.
The Village has purchased dump bodies and salt spreaders from Monroe in the past. All of
these components have been of good quality and long-lasting.
AItPrnativPR
1. Accept the Sourcewell joint purchasing bid result for the purchase of one (1) new 14 FT
RDS spreader dump body from Monroe Truck.
2. Action at the discretion of the Village Board
Staff Recommendation
Staff recommends that the Village Board accept the joint purchasing bid result (Sourcewell
contract #062222-AEB-1) and authorize the purchase of one (1) 14 FT RDS spreader dump
body from Monroe Truck, of Monroe, Wi. at a cost not to exceed $85,686.00.
Attachments
1. 4528 OLD BODY
2. RDS BODY MONROE TRUCK PIC
3. MONROE RDS BODY $85,686 QUOTE 400 Gallon Tanks
aoo-:arfofaoa{o.,rin� um
1051 W 7th St
Monroe, WI 53566
Sales Rep: Tim Reynolds
Ph: 815-275-0223
www.MonroeTruck.com
Quoted to:
MT PROSPECT, VILLAGE OF (ATTN: KEVIN DELUCA)
1700 WEST CENTRAL
MT PROSPECT, IL 60056
Ph: 847-870-5640 / Fax: 847-253-9377
Email: KDELUCA@MOUNTPROSPECT.ORG
Quotation ID: 9KK1000293
Date: 4/3/2024
Valid thru: 5/3/2024
Terms: NET 30
Quoted by: Kaden King
Ph/Fax: 608-329-8322/
Chassis Information
Year. 2023 Make:
IES
Cha
Single/Dual.- DRW { CA: 85.0 INTERNATIONALICT.• -1.0 1 Wheelbase: se 5152.0 I Engine: DIESEL F.O. A V nb Type: REGULAR
Notes
Monroe Truck Equipment, Inc. is pleased to offer the following quote for your review:
Description
MONROE RDS (RADIUS DUMP SPREADER) SPREADER BODY- DUAL AUGER
304 STAINLESS STEEL SIDES AND ENDS
14' LONG X 87" INSIDE WIDTH X 96" OUTSIDE WIDTH
SLOPED SIDED BODY IS 50" HIGH TAILGATE AND 56" HIGH FRONT WALL
3/16" STAINLESS STEEL BODY
14" HIGH X 1/4" STAINLESS STEEL LONGSILLS WITH DUALAUGER TROUGHS
FORMED AND BOXED TOPRAIL
BODY TO BE 100% WELDED
DUAL AUGER DISCHARGE TO THE REAR ONLY
AUGERS ARE 7" DIAMETER AND HAVE 1/2" STEP FLIGHTING
3/16" AR400 FLOOR COVER KIT FOR USE AS A DUMP BODY
FORMED AND BOXED TOPRAIL
DUAL AUGER DISCHARGE TO THE REAR ONLY
BODY MOUNTED STAINLESS STEEL FENDER KIT TO ACCOMIDATE
DUAL 270 GALLON TANKS
STAINLESS STEEL CABSHIELD KIT -- SHIPPED LOOSE - CUSTOMER TO WELD ON
STAINLESS STEEL FOLD -UP LADDER ASSEMBLY ON DRIVERS SIDE
DOUBLE ACTING RECTANGULAR TAILGATE WITH BOXED PERIMETER (WILL FOLD FLAT)
AIR TRIP TAILGATE ASSEMBLY
FRONT/REAR GREASE BANK FOR EASE OF SERVICE
TOP SCREEN TO BE A BOLT -IN DESIGN AND IS ATTACHED AT ALL FOUR BOX CORNERS.
3/8 INCH ROD WELDED TO FORM A 2.5 INCH MAXIMUM OPENING.
LIFT OFF DESIGN WITH A KWIK CONNECT BOLT -IN STYLE.
- ALL STEEL CONSTRUCTION, POWDER COAT BLACK
SINGLE REAR SPINNER - RECIEVER TUBE STYLE MOUNT - WITH 20" POLY SPINNER
-SHIPLOOSE -CUSTOMER TO INSTALL CUSTOM MOUINTTO INSTALL SPINNER
L.E.D. STOP/TURN AND TAIL LIGHTS TO MEET FMVSS 108 - SHIPPED LOOSE
BODY TO BE BARE STAINLESS STEEL
NOT INSTALLED
MAILHOT FRONT TELESCOPIC HOIST CS130-5.5-3-DA
130" STROKE X 5.5" BORE X 3 STAGE NITRITED CYLIDER
25 TON LIFTING CAPACITY
DOUBLE ACTING HOIST
-TRUNNION LIFT HOIST
- HEAVY DUTY HINGE WITH STAINLESS PINS
- BODY PROP
- NOT INSTALLED
1111
moip
Amount
Page 1 of 5
Description
PRE -WET KIT TO INCLUDE THE FOLLOWING:
DUAL 270 GALLON POLY TANKS - FENDER MOUNTED
7GPM PRE -WET PUMP WITH FORCE AMERICA
COMPATABLE FLOW METER -ALL INSTALLED'IN
NEMA WEATHER RPOOF ENCLOSURE
FLUSH KIT
2" BULK FILL KIT
SPRAYABAR MOUNTED IN AUGER TROUGH
FACTORY INSTALLED ON BODY
FOB MONROE WISCONSIN
Amount
Quote Total: $82,046.00
** DUE TO C(JRRElVT f►?ARICFT COIVDfTfOlVS, IF Tt1E CF9ASStS InfILL A(OT RF O!y-CaROLf�(D A7 ARO!lPROF 7RUCIC F(211fPtlTFtVd lR/ITFf1A@ 240 CALEPl�DAR DAYS OF ORDER DATEn UI(F
WILL REQT BEFORE THE 210TH DAY IFYOU UNICIPALITY COULD RE SUBJECT
TO A MINIM 1D PRICE AT TIME OF INVOICE!
Down Payment Due Date:
Additional Options:
Description Amount Add to quote?
UPCHARGE FOR - DUAL 400 GALLON LIQUID TANKS IN LIEU OF DUAL 270 GALLON TANKS $3,640.00 Yes / No
** LADDER NOT AVAILABLE WITH THIS OPTION **
Terms & Conditions
• Terms are Due Upon Receipt unless prior credit arrangements are made at the time of order.
• Please note if chassis is furnished, it is as a convenience and terms are Net Due on Receipt of Chassis.
• State and Federal taxes will be added where applicable. Out-of-state municipal entities may be subject to Wisconsin sales tax.
• Restocking fees may be applicable for cancelled orders.
• MITE is not responsible or liable for equipment that does not meet local/state regulations if those laws are not made known at time of order.
By signing and accepting this quote, the customer agrees to the terms listed above and has confirmed that all chassis information listed above is accurate to chassis specs.
Re -Assign (Required for all pool units): ❑ Fleet ❑ Retail
MSO/MCO (ONLY check if legally required):
❑ MCO ❑ MSO
Customer Signature:
Customer P.O. Number: 7Date
of Acceptance:
Page 2 of 5
General Terms and Conditions for the Sale of Goods
by Subsidiaries of ASH North America, Inc.
SCOPE AND VALIDITY
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
Customers 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 these Terms.
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, Customer makes 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 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 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
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
Page 3 of 5
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-a-vis any of Customer's creditors, and hereby irrevocably grants to Seller a power of attorney to execute all necessary statements 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.
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 Costumer 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 Products shall 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 they have 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 modifies any 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. (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 anyjurisdiction 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).
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, Seller shall, 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
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 — WHETHER BASED UPON CONTRACT, TORT,
EQUITY, NEGLIGENCE, OR ANY OTHER LEGAL CONCEPT — 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 Customer or third parties following the delivery of the Products, (e) Customer's 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).
Page 4 of 5
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.
11. CONFIDENTIALITY
11.1. "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 Customer at 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 0, 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.
12. INTELLECTUAL PROPERTY
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 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, provided that 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 the subject 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 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.
16. APPLICABLE LAW AND JURISDICTION
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.
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