NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY SORT, NOR FOR ANY LOSS OF PROFITS OR LOSS OF SALES/REVENUE INCLUDING, WITHOUT LIMITATION, BOTH DIRECT AND CONSEQUENTIAL LOST PROFITS, BUSINESS INTERRUPTION AND LOST SALES/REVENUE DAMAGES, WHETHER ARISING UNDER WARRANTY, GUARANTEE, CONTRACT, TORT OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER RELATED IN ANY WAY TO OR ARISING FROM THE ORDER OF THE GOODS OR SERVICES COVERED BY THIS ORDER. ANY AND ALL INDEMNITY OBLIGATIONS OF OPTIMUS UNDER, RELATED TO OR ARISING FROM THE ORDER ARE LIMITED TO, AND SHALL IN NO EVENT EXCEED, THE AMOUNT OF OPTIMUS’ APPLICABLE INSURANCE COVERAGE AVAILABLE TO OPTIMUS FOR PAYMENT OF SUCH OBLIGATIONS THE PROVISIONS OF THIS DAMAGES LIMITATION SECTION SHALL PREVAIL OVER ANY INCONSISTENT PROVISIONS ELSEWHERE IN THE CONTRACT AND SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS CONTRACT.
The price does not include any federal, state, or local property, license, privilege, sales use, excise, gross receipts or the like taxes which may now or hereafter be applicable to, measured by, or imposed upon or with respect to the transaction, the equipment and other goods, its sale, its value or its use, or any services performed in connection herewith. Customer agrees to pay all such taxes and to indemnify and hold harmless Optimus and Optimus subcontractors and suppliers from all such taxes and any interest, penalty, or other expense related to any such tax.
Any order or contract may be terminated by the Customer only upon payment of a cancellation fee in an amount equal to expenses already incurred and commitments made by Optimus. Expenses include engineering, administrative and marketing, as well as manufacturing and purchasing expenses.
If, in the judgment of Optimus, the financial condition of the Customer, at any time during the manufacturing period or at the time equipment or other goods are ready for shipment, does not justify the terms of payment specified, Optimus may require full or partial payment in advance. If shipment is delayed by the Customer, payments shall become due from the date when Optimus is prepared to make shipment. If manufacture is delayed by the Customer, payment shall be made based on the purchase price and percentage of completion. Equipment or other goods held for the Customer after completion shall be at the risk and expense of the Customer.
If payments are not made in conformance with the stated terms, the Customer shall pay a finance charge of 1.5% per month on the unpaid balance.
SECURITY FOR PAYMENT
To secure the payment of any and all amounts due Optimus, Optimus retains and the Customer grants to Optimus a security interest under the Uniform Commercial Code in the equipment and other goods purchased hereunder and agrees to execute and deliver to Optimus such financing statements as Optimus may reasonably request. If the Customer fails to make payment in accordance with the stated terms, Optimus may declare all obligations of the Customer to Optimus immediately due and payable and proceed to enforce payment and exercise any and all of the rights and remedies provided by the Uniform Commercial Code.
DELIVERY AND RISK OF LOSS
Unless otherwise stated, delivery of new equipment or other goods will be made FCA point of shipment. Shipping dates are approximate and are based on prompt receipt of all necessary information from the Customer, including providing drawing approvals and necessary information as applicable. Optimus shall not be liable for any incidental or consequential damages of any type for delay with respect to shipping, delivery, installation or start-up dates.
NON PERFORMANCE OR DELAY
Optimus shall not be liable for failure to perform or for delay in performance due to fire, flood, strike, pandemic, endemic or other difficulty, act of any governmental authority or of the Customer, riot, embargo, car shortage, wrecks or delay in transportation, inability to obtain necessary labor, materials, goods or manufacturing facilities from usual sources or due to any other cause beyond its reasonable control. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be postponed by such length of time as may be reasonably necessary to compensate for the delay. Customer is responsible for any additional costs incurred by Optimus as a result of delays caused by Customer, its employees, agents or other subcontractors.
The period within which Optimus may cure any default in the performance of any of Optimus’ obligations under this Contract shall be thirty (30) days after receipt by Optimus of written notice of default from Customer. However, a default which reasonably requires more than thirty (30) days to cure shall be deemed cured if Optimus in good faith within thirty (30) days after receipt of notice commences performance requisite to cure same and thereafter continuously and with reasonable diligence proceeds to complete the performance required to cure such default within a commercially reasonable time.
a) Arbitration Rules and Governing Law.
Any and all disputes or claims relating to or arising out of this Order or its breach shall be settled by arbitration conducted in accordance with the Uniform Arbitration Act, Chapter 417 of the Kentucky Revised Statutes in force at the time of the execution and delivery of this Order, with exclusive jurisdiction, venue and place of arbitration in Jefferson County, Kentucky. The appropriate Kentucky court shall have the power, authority and jurisdiction to enforce this arbitration provision as provided in Chapter 417 described above. This paragraph is meant to be and shall be construed as broadly as legally permissible to use arbitration for the purposes described herein. The parties hereto specifically and irrevocably waive a jury trial of all issues and matters. Judgment upon the award entered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall use the substantive and procedural laws of the Commonwealth of Kentucky. The arbitration award shall be final and binding on the parties, and the parties agree to be bound thereby and to act accordingly. The applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded from this Order.
b) Good Faith Effort.
Prior to initiation of arbitration, executive level personnel from both parties shall engage in in-person, good faith efforts to resolve any dispute. Either party hereto may give the other party written notice of any dispute not resolved in the normal course of business. Within fifteen (15) days after delivery of the notice, the receiving party shall submit to the other a written response. The notice and response shall include (i) a statement of the party’s concerns and perspectives on the issue(s) in dispute, and (ii) the name and title of the executive who will represent the party at the pre-arbitration, good faith resolution meeting required herein. This meeting must take place within thirty (30) days from the initial notice of any dispute.
c) Selection and Authority.
Arbitration shall be conducted by a single arbitrator. The arbitrator shall be selected by agreement of the parties hereto. In the event the parties cannot agree, each party shall select one arbitrator, and the two arbitrators so selected shall select a third arbitrator who shall act as arbitrator. Each party is responsible for the cost of its own efforts relating to the arbitration including, without limitation, all attorneys’ fees. All other costs and expenses of the entire arbitration proceeding, including the fee(s) of the arbitrator(s), shall be borne equally by the parties. The arbitrator shall have no authority to award punitive or exemplary damages or to include interest in any determination.
d) Enforcement of Arbitration Clause.
Any party hereto who is required to enforce the processes of this arbitration provision shall be entitled to recover attorney’s fees incurred in enforcing the requirements of this provision.
The parties hereto shall treat the arbitration process and any results of the arbitration as confidential.
MANUALS, DRAWINGS AND SPECIFICATIONS
All manuals, instructions, drawings or specifications related to the equipment, goods and services described in this order and the information contained therein contain proprietary information and may not be reproduced, transferred, or distributed or used in any manner unrelated to the equipment or other goods sold pursuant to this order by Customer without the prior consent of Optimus.
Customer shall indemnity and hold Optimus harmless from all expenses (including attorneys’ fees), claims, demands, suits, judgments, actions, costs, and liabilities (including without limitation those alleging Optimus’ own negligence) which arise from, relate to or are connected with the Customer’s negligent possession, use, operation or resale of the equipment, goods or services described herein or any manuals, instructions, drawings or specifications related thereto.
DISCLAIMER OF WARRANTIES
UNLESS OTHERWISE EXPRESSLY STATED ON THE FACE HEREOF OR IN A SIGNED MODIFICATION OF THIS ORDER: (1) THERE ARE NO REPRESENTATIONS OR WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF; (2) OPTIMUS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, ON ANY OF THE EQUIPMENT OR OTHER GOODS OR SERVICES (INCLUDING ANY MANUALS, INSTRUCTIONS, DRAWINGS OR SPECIFICATIONS RELATED THERETO) SOLD PURSUANT TO THIS ORDER AND SPECIFICALLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE; (3) OPTIMUS WILL MAKE REASONABLE EFFORTS TO ASSIST CUSTOMER WITH REGARD TO ALL WARRANTIES (IF ANY) PROVIDED FOR CUSTOMER’S BENEFIT BY THE ORIGINAL SUPPLIER OR MANUFACTURER WITH RESPECT TO NEW EQUIPMENT OR GOODS SOLD PURSUANT TO THIS ORDER.
LIMITATION OF REMEDIES
IF ANY WARRANTY IS DEEMED TO EXIST (WHETHER ARISING FROM STATUTE, COMMON LAW, CUSTOM OR OTHERWISE) WITH RESPECT TO THE EQUIPMENT, GOODS OR SERVICES COVERED BY THIS ORDER, THE REMEDY OF REPAIR OR REPLACEMENT OF THE DEFECTIVE WARRANTED EQUIPMENT, OTHER GOODS OR SERVICES SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER OR ANY OTHER PERSON. IN THE EVENT THAT REPAIR OR REPLACEMENT IS AN INEFFECTIVE REMEDY, CUSTOMER’S SOLE AND EXCLUSIVE ADDITIONAL REMEDY IS THE RIGHT TO RECOVER AN AMOUNT NOT TO EXCEED THE AMOUNT PAID TO OPTIMUS FOR THE DEFECTIVE ITEMS OF EQUIPMENT, OTHER GOODS OR SERVICES. EXCEPT FOR SUCH REPAIR, REPLACEMENT OR REFUND, OPTIMUS SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, EXPENSE OR DAMAGE CAUSED BY OR RESULTING FROM THE EQUIPMENT OR OTHER GOODS OR SERVICES WHETHER CAUSED BY DEFECT, FAILURE OR MALFUNCTION AND WHETHER A CLAIM OF SUCH DAMAGE IS BASED UPON WARRANTY, CONTRACT, NEGLIGENCE OR OTHER THEORY.
ACCEPTANCE OF ORDER
This order is a proposal to make a contract only and does not become a binding contract upon Optimus until signed by Customer and accepted by Optimus at its home office in Louisville, Kentucky. This agreement may be executed and delivered by exchange of electronic copies (including email or facsimile copies) showing the signatures of Customer and Optimus and those signatures need not be affixed to the same copy. The electronic copies showing the signatures will constitute originally signed copies of the same agreement requiring no further execution. When so accepted, the order will become a contract deemed to be made in Kentucky and governed by Kentucky law including without limitation the Uniform Commercial Code as adopted by Kentucky and in effect on the date of this order. Acceptance of this order by Optimus is expressly limited to the provisions contained herein and this order supersedes all other offers or proposals submitted by Customer and all terms and conditions in any correspondence, acknowledgments or purchase order forms submitted to Optimus by Customer.
Customer agrees it will not, without the prior written consent of Optimus, employ personnel of Optimus during the period of work provided under this Contract or for a period of one year thereafter.
MODIFICATION AND WAIVER
This order contains the entire agreement between Customer and Optimus regarding the services, equipment and all other goods described herein and can only be modified or rescinded in writing, signed by a representative of the Customer and a duly authorized officer of Optimus.