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HomeMy WebLinkAbout44-18 RESOLUTIONorl, M1AV(r�F.. 1, 1 ��kkAli `sP7 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Resolution: 44-18 File Number: 2018-0058 JWC ENVIRONMENTAL, LLC: A RESOLUTION TO APPROVE AN AGREEMENT WITH JWC ENVIRONMENTAL, LLC IN THE AMOUNT OF $49,047.06 FOR THE REPAIR OF A CHANNEL MONSTER GRINDING AND SCREENING UNIT USED AT THE HAMESTRING SEWER LIFT STATION WHEREAS, the Hamestring Sewer Pump Station has a Channel Monster in-line screening and grinding unit which protects it and the Westside Wastewater Treatment Plant from large foreign objects entering the pump station which is in need of repair; and WHEREAS, Ordinance 5583 waived the requirement of formal competitive bidding and authorized future repairs of the Channel Monster by JWC Environmental, LLC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the agreement with JWC Environmental, LLC in the amount of $49,047.06 for the repair of a Channel Monster grinding and screening unit used at the Hamestring Sewer Lift Station. PASSED and APPROVED on 2/6/2018 Attest: Sondra E. Smith, City Clerk TC ef,\T Z�a A . VC Page 1 Printed on 2/7/18 City of Fayetteville, Arkansas 113 West Mountain Street r. Fayetteville, AR 72701 (479) 575-8323 { Text File File Number: 2018-0058 Agenda Date: 2/6/2018 Version: 1 Status: Passed In Control: City Council Meeting File Type: Resolution Agenda Number: A. 10 JWC ENVIRONMENTAL, LLC: A RESOLUTION TO APPROVE AN AGREEMENT WITH JWC ENVIRONMENTAL, LLC IN THE AMOUNT OF $49,047.06 FOR THE REPAIR OF A CHANNEL MONSTER GRINDING AND SCREENING UNIT USED AT THE HAMESTRING SEWER LIFT STATION WHEREAS, the Hamestring Sewer Pump Station has a Channel Monster in-line screening and grinding unit which protects it and the Westside Wastewater Treatment Plant from large foreign objects entering the pump station which is in need of repair; and WHEREAS, Ordinance 5583 waived the requirement of formal competitive bidding and authorized future repairs of the Channel Monster by JWC Environmental, LLC. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves the agreement with JWC Environmental, LLC in the amount of $49,047.06 for the repair of a Channel Monster grinding and screening unit used at the Hamestring Sewer Lift Station. City of Fayetteville, Arkansas Page 1 Printed on 21712018 City of Fayetteville Staff Review Form 2018-0058 Legistar File ID 2/6/2018 City Council Meeting Date - Agenda Item Only N/A for Non -Agenda Item Greg Weeks 1/17/2018 Wastewater Treatment Plant / Utilities Department Submitted By Submitted Date Division / Department Action Recommendation: Staff recommends a resolution approving repair of a grinding and screening unit for the Hamestring Lift Station on Sunshine Road from JWC Environmental in the amount of $44,689.80 plus estimated applicable taxes of $4,357.26, for a total amount of $49,047.06. 5400.730.5800-5414.00 Account Number 02068.1 Project Number Budget Impact: Water/Sewer Fund Upgrade/Replace Lift Stations - WWTP Project Title Budgeted Item? Yes Current Budget $ 330,985.00 Funds Obligated $ 139,082.45 Current Balance $ 191,902.55 Does item have a cost? Yes Item Cost $ 49,047.06 Budget Adjustment Attached? No Budget Adjustment $ - Remaining Budget $ 142,855.49 V20140710 Previous Ordinance or Resolution # Original Contract Number: Comments_ Approval Date: CITY OF all ARKANSAS MEETING OF FEBRUARY 6, 2018 TO: Mayor and Fayetteville City Council THRU: Don Marr, Chief of Staff Water & Sewer Committee Tim Nyander, Utilities Director FROM: Greg Weeks, Wastewater Treatment DATE: January 17, 2018 STAFF MEMO SUBJECT: Repair of a Grinding and Screening Unit for the Hamestring Sewer Lift Station RECOMMENDATION: Staff recommends a resolution approving the repair of a grinding and screening unit for the Hamestring sewer lift station from JWC Environmental, LLC in the amount of $49,047.06. BACKGROUND: A sewer grinder and screening unit (Channel Monster®) is installed on the front end of the Hamestring Lift Station on Sunshine Road. This unit protects both the station's seven pumps as well as downstream process systems, such as the West Side Water Resource Recovery Facility (WRRF), by shredding large debris and trash transported within the sewer system allowing it to pass through pumps, pipes and process systems less problematically. The sewer grinder is a key protection against critical equipment blockages, failures or sanitary sewer overflows occurring at the Hamestring Lift Station (which pumps over 85% of the treatment facility's flow) and the West Side WRRF. Every two years funding is set aside to send the Channel Monster back to the manufacturer for inspection and repairs. Recently, the unit was sent to JWC for inspection and a repair quote. DISCUSSION: There are two sewer grinder units inventoried for the Hamestring Lift Station, an in-service unit and a critical spare. The units are exchanged approximately every 2 years depending upon equipment demands as the in-service unit is pulled for equipment wear inspection and evaluated for necessary repairs. The secondary unit is utilized for continued screening & grinder operation during the inspection, evaluation and repairs timeframe. The in-service unit remains installed until service repairs are needed and the sewer grinder exchange process is repeated. Similar equipment repairs were last completed in 2015 on the lift -station's in-service sewer grinder. Since that time, the secondary unit has been in-service allowing for continued screening and grinding operations. In late 2017, the sewer grinders were swapped with the in- service unit being shipped to the manufacturer for inspection and a repair quote. The City received a quote for repairs from JWC Environmental in the amount of $44,689.80 (attached). Mailing Address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 Applicable taxes are estimated in the amount of $4,357.26, for a total amount of $49,047.06. Because it was necessary to have the certified repair facility disassemble the units to determine the extent of hidden and unknown damage to equipment already purchased, a bid waiver and/or formal sealed bidding is not necessary according to Arkansas Procurement Law 86:19-11- 203, Subsection 14 (EE) "hidden or unknown damages." BUDGET/STAFF IMPACT: Funds are available in the Wastewater Treatment Plant CIP — Upgrade/Replace Lift Stations project. ATTACHMENTS: Repair Quote weEnvirommmal Customer Service Center 2600 S. Garnsey Street Santa Ana, CA 92707 USA Phone: 949 833-3888 Toll Free: 800 331-2277 Fax: 714 549-4007 Customer: 6007626 Quote Number: 40951RevA Office Quote Date: 12/26/2017 Fayetteville, City of Terms: NET 30 DAYS Accounts Payable / Attn: Cheryl Partain Pricing: Valid 60 Days 113 West Mountain Street FOB: Origin Fayetteville, AR 72701 Lead Time: 3 to 4 Weeks US Grinder Serial #: 110269-1-1-01 - CDD6020-XDM2.5 479-575-8220 Project: City of Fayetteville All orders will be billed the applicable sales tax, based on the "ship to address", unless a valid tax exemption certificate is provided prior to shipment. Part Number Description Qty Unit Price Extended Price EVAL_CA CDD6020-XDM2.5-Repair Evaluation 1 $0.00 $0.00 Expected Return Grinder SN: 110269-1-1-01 CDD6020-XDM2.5 CDD6020-XDM2.5-Repair 1 $38,689.80 $38,689.80 11 Cam Cutters Stack 1:1 Hardened Alloy STL Vertical Shaft Support Assembly With Grease Lines Buna N Elastomers Cork & Rubber Gaskets 1/2" Diameter Coil Drums 10HP TENV XP 460V IMM Motor with 40FT SO Cable 43:1 Reducer Spool 1 HP TENV XP IMM Drum Motors (2) with 40FT SO Cables 377:1 Reducers (2) Spools (2) Grinder SN: 110269-1-1-02 tttt.w»t+wt.tt»..tttwww»....«�trt.t,t. Paint Green Epoxy ...A*ttttwwtwiiwwta;•w• RL Repair Labor 1 $0.00 $0.00 Shipping Shipping & Handling - ESTIMATE ONLY 1 $6,000.00 $6,000.00 We will prepay and add to the invoice Please verify serial number is correct. Sub Total $44,689.80 Tax Total $44,689.80 Notes: Thank -You for your Businessl JWC Environmental LLC Michael Wolf Customer Service Customer Service Center 2600 S. Garnsey Street Santa Ana, CA 92707 USA Phone: 949 833-3888 Toll Free: 800 331-2277 Fax: 714 549-4007 Bill To Name & Address: Email Address: PO# Please select a shipping method: Ship To Name & Address: Payment terms: Net 30 FOB: Origin _ Prepay & Add to Invoice Collect Account #: Carrier: JWCE will add shipping and handling charges to invoices unless otherwise specified. Please fax or email your PO and most recent tax certificate to: Fax (714) 549-4007 Email servicesales@jwce.com Credit cards: _ 1 authorize JWCE to process this order on my credit card and add shipping and handling charges. Call Customer Service at (800) 331-2277 for credit card processing. Signature: Date: Customer Service Center 2600 S. Garnsey Street Santa Ana, CA 92707 USA .�.,.w Env�nme—M 1L��' Phone: 949 833-3888 Toll Free: 800 331-2277 ""- Fax: 714 549-4007 Please provide the following information. Failure to do so may delay processing of order. Quote M 40951RevA Bill To Name & Address: Email Address: PO# Please select a shipping method: Ship To Name & Address: Payment terms: Net 30 FOB: Origin _ Prepay & Add to Invoice Collect Account #: Carrier: JWCE will add shipping and handling charges to invoices unless otherwise specified. Please fax or email your PO and most recent tax certificate to: Fax (714) 549-4007 Email servicesales@jwce.com Credit cards: _ 1 authorize JWCE to process this order on my credit card and add shipping and handling charges. Call Customer Service at (800) 331-2277 for credit card processing. Signature: Date: JWC ENVIRONMENTAL TERMS AND CONDITIONS OF SALE Unless otherwise specifically agreed to in writing by the buyer ("Buyer") of the products and or related services purchased hereunder (the "Products") and JWC Environmental (the "Seller"), the sale of the Products is made only upon the following terms and conditions. Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer's assent to these terms Seller rejects all additional, conditional and different terms in Buyer's form or documents PAYMENTTERMS Subject to any contrary terms set forth in our price quotation, order acceptance or invoice the full net amount of each invoice is due and payable in cash within 30 days from the dale of the invoice, If any payment is not received within such 30 -day period, Buyer shall pay Seller the lesser of 1 11%% per month or the maximum legal rale on all amounts not received by the due dale of the invoice, from the 31st day after the dale of invoice until said invoice and charges are paid in full Unless Sellers documents provide otherwise, freight, storage, insurance and all taxes, duties or other governmental charges related to the Products shall be paid by the Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller for said charges In all cases, regardless of partial payment, title to the Products shall remain the Sellers until payment for the Products has been made in full, All orders are subject to credit approval by Seller All offers by Seller and/or acceptance of Buyers order shall be nullified by any failure of Buyer to obtain credit approval Furthermore, Buyer shall not assert any claim against Seller due to Buyers inability to obtain credit approval Irrevocable Letter of Credit from Buyer in form and term acceptable to Seller is required for Product orders delivered outside the United Slates of America DELIVERY Unloss otherwise provided in our price quotation, delivery of the Products shall be made F.O.B. pars of manufacture. Any shiprnanl, delivery, installation or somear dales quoted by the Seller are estimated and the Sellcr shall be obligated only to use reasonable elforts td meet such dales The Seller shall in no event be liable for any delays In delivery or failure to give notice of delay or for any other failure to parfoim hereunder due to causes beyond the reasonable control of the Seller. Such causes shall include, but not be limited to, acts of God, the elements, acts or omissions of menufaclurers or suppliers of the Products or parts thereof, acts or omissions of Buyer or civil and military authorities, fires, labor disputes or any other inability to obtain the Products, parts thereof, or necessary power, labor, materials or supplies The Seller will be entitled to refuse to make, or to delay, any shipments of the Products if Buyer shall fail to pay when due any amount owed by it to the Seller, whether under this or any other contract between the Seller and Buyer. Any claims for shortages must be made to the Company in writing within five calendar days from the delivery date and disposition of the claim is solely subject to Sellers determination PRICES Prices of the Sellers Products are subject to change without notice Quotations are conditioned upon acceptance within 30 days unless otherwise staled and are subject to correction for errors and/or omissions. Prices include charges for regular packaging but, unless expressly staled, do not include charges for special requirements of government or other purchaser Prices are subject to adjustment should Buyer place an order past the validity period of the quotation or delay delivery of Products beyond the quoted lead time for any reason RETURNS No Products may be returned for cash. No Product may be returned for credit after delivery to Buyer without Buyer first receiving written permission from the Seller. Buyer must make a request for return of Product in writing to Seller at its place of business in Costa Mesa, California. A return material authorization number must be Issued by the Seller to the Buyer before a Product may be returned Par misskrrl to rolum Product to Seller by Buyer is solely and exclusively the Sellers. Product must be returned to Seller at Buyers expense, including packaging, insurance, transportation and any governmental fees Any credit for Product returned to Seller shall be subject to the inspection of and acceptance of the Product by the Seller and is at the sole discretion of the Seller LIMITED WARRANTY Subject to the terms and conditions hereof, the Seller warrants until one year akar commissioning (written notification to Seller by Buyer required) of the Product or unlit 18 months after delivery of such Product to Buyer, whichever is earlier, that each Product will be free of defects in material and workmanship If (a) the Seller receives written notification of such defect during the warranty period and the defective Products use is discontinued promptly upon discovery of alleged defect, and (b) it the owner ('Owner') forwards the Product to the Sellers nearest service/repair facility, transportation and related insurance charges prepaid The Seller will cause any Products whose defect is covered under this warranty to eilhaf be replaced or be repaired at no cost to the Owner The foregoing warranty does not cover repairs required due to repair or alleralion other than by the Sellers personnel, accident, neglect, misuse, transportation or causes other than ordinary use and maintenance in accordance with the Sellers instructions and specifications In addition, the foregoing warranty does not cover any Products, or components thereof, which are not directly manufactured by the Seller To the extent a warranty for repair or replacement of such Products or components not manufactured directly by the Seller is available to Buyer under agreements of the Seller with its vendors; the Seller will make such warranties available to Buyer. Costs of transportation of any covered defective item to and from the nearest service/repair center and related insurance will be paid or reimbursed by Buyer Any replaced Products will become the property of the Seller Any replacement Products will be warranted only for any remaining term of the original limited warranty period and not beyond that term DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES THE SELLER'S FOREGOING LIMITED WARRANTY IS THE EXCLUSIVE AND ONLY WARRANTY WITH RESPECT TO THE PRODUCTS AND SHALL BE IN LIEU OF ALL OTHER WARRANTIES (OTHER THAN THE WARRANTY OF TITLE), EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY STATEMENTS MADE BY EMPLOYEES, AGENTS OF THE SELLER OR OTHERS REGARDING THE PRODUCTS THE OBLIGATIONS OF THE SELLER UNDER THE FOREGOING WARRANTY SHALL BE FULLY SATISFIED BY THE REPAIR OR THE REPLACEMENT OF THE DEFECTIVE PRODUCT OR PART, AS PROVIDED ABOVE. IN NO EVENT SHALL THE SELLER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF THE SELLER TO BUYER AND OTHERS ARISING FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH BUYER'S PURCHASE, USE AND DISPOSITION OF ANY PRODUCT COVERED HEREBY SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT BY BUYER. NO ACTION, REGARDLESS OF FORM, ARISING FROM THIS AGREEMENT OR BASED UPON BUYER'S PURCHASE, USE OR DISPOSITION OF THE PRODUCTS MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, EXCEPT THAT ANY CAUSE OF ACTION FOR THE NONPAYMENT OF THE PURCHASE PRICE MAY BE BROUGHT AT ANY TIME The remedies provided to Buyer pursuant to the limited warranty, disclaimer of warranties and limitations of liabilities, described herein are the sole and exclusive remedies Unless specifically agreed to in writing by the Seller, no charges may be made to the Seller by Buyer or any third party employed by buyer for removing, installing or modifying any Product The Seller and its representatives may furnish, at no additional expense, data and engineering services relating to the application, installation, maintenance or use of the Products by Buyer The Seller will not be responsible for, and does not assume any liability whatsoever for, damages of any kind sustained either directly or indirectly by any person through the adoption or use of such data or engineering services in whole or in part CONFIDENTAIL INFORMATION Except with the Sellers prior written consent, Buyer shall not use, duplicate or disclose any confidential proprietary information delivered or disclosed by the Seller to Buyer for any purpose other than for operation or maintenance of the Products. CANCELLATION AND DEFAULT Absolutely no credit will be allowed for any change or cancellation of an order for Products by Buyer after fabrication of the Products to fill Buyers order has been commenced If Buyer shall default in paying for any Products purchased hereunder, Buyer shall be responsible for all reasonable costs and expenses, including (without limitation) attorney's fees incurred by the Seller in collecting any sums owed by Buyer All rights and remedies to the Seller hereunder or under applicable laws are cumulative and none of them shall be exclusive of any other right to remedy. No failure by the Seller to enforce any right or remedy hereunder shall be deemed to be a waiver of such right or remedy, unless a written waiver is signed by an authorized management employee of the Seller and the Sellers waiver of a breach of this agreement by Buyer shall not be deemed to be a waiver of any other breech of the same or any other pfowlsion. CHANGES IN PRODUCTS Changes may be made in materials, designs and specifications or the Products without notice. The Seller shall not incur any obligation to furnish or install any such changes or modifications on Products previously ordered by, or sold to, Buyer APPLICABLE LAW, RESOLUTION OF DISPUTES AND SEVERABILITY This agreement is entered into in Costa Mesa, California This agreement and performance by the parties hereunder shall be construed in accordance with, and governed by, the laws of the Slate of California Any claim or dispute arising from or based upon this agreement or the Products which form its subject matter shall be resolved by binding arbitration before the American Arbitration Association in Los Angeles, California, pursuant to the Commercial Arbitration Rules, excepting only that each of the parties shall be entitled to take no more than two depositions, and serve no more than 30 interrogatories, 10 requests for admissions and 20 individual requests for production of documents, such discovery to be served pursuant to the California Code of Civil Procedure Any award made by the arbitrator may be entered as a final judgment, in any court having jurisdiction to do so If any provision of this agreement shall be held by a court of competent jurisdiction or an arbitrator to be unenforceable to any extent, that provision shall be enforced to the full extent permitted by law and the remaining provisions shall remain in full force and effect ASSIGNMENT This agreement shall be binding upon the parties and their respective successors and assigns However, except for rights expressly provided to subsequent Owners of the Products under "Limited Warranty" above, Customer Service Center 2600 S. Garnsey Street Santa Ana, CA 92707 USA E�y� ���j Phone: 949 833-3888 61�r 1 Toll Free: 800 331-2277 Fax: 714 549-4007 JWC ENVIRONMENTAL TERMS AND CONDITIONS OF SALE Unless otherwise specifically agreed to in writing by the buyer ("Buyer") of the products and or related services purchased hereunder (the "Products") and JWC Environmental (the "Seller"), the sale of the Products is made only upon the following terms and conditions. Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is conditioned on Buyer's assent to these terms Seller rejects all additional, conditional and different terms in Buyer's form or documents PAYMENTTERMS Subject to any contrary terms set forth in our price quotation, order acceptance or invoice the full net amount of each invoice is due and payable in cash within 30 days from the dale of the invoice, If any payment is not received within such 30 -day period, Buyer shall pay Seller the lesser of 1 11%% per month or the maximum legal rale on all amounts not received by the due dale of the invoice, from the 31st day after the dale of invoice until said invoice and charges are paid in full Unless Sellers documents provide otherwise, freight, storage, insurance and all taxes, duties or other governmental charges related to the Products shall be paid by the Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller for said charges In all cases, regardless of partial payment, title to the Products shall remain the Sellers until payment for the Products has been made in full, All orders are subject to credit approval by Seller All offers by Seller and/or acceptance of Buyers order shall be nullified by any failure of Buyer to obtain credit approval Furthermore, Buyer shall not assert any claim against Seller due to Buyers inability to obtain credit approval Irrevocable Letter of Credit from Buyer in form and term acceptable to Seller is required for Product orders delivered outside the United Slates of America DELIVERY Unloss otherwise provided in our price quotation, delivery of the Products shall be made F.O.B. pars of manufacture. Any shiprnanl, delivery, installation or somear dales quoted by the Seller are estimated and the Sellcr shall be obligated only to use reasonable elforts td meet such dales The Seller shall in no event be liable for any delays In delivery or failure to give notice of delay or for any other failure to parfoim hereunder due to causes beyond the reasonable control of the Seller. Such causes shall include, but not be limited to, acts of God, the elements, acts or omissions of menufaclurers or suppliers of the Products or parts thereof, acts or omissions of Buyer or civil and military authorities, fires, labor disputes or any other inability to obtain the Products, parts thereof, or necessary power, labor, materials or supplies The Seller will be entitled to refuse to make, or to delay, any shipments of the Products if Buyer shall fail to pay when due any amount owed by it to the Seller, whether under this or any other contract between the Seller and Buyer. Any claims for shortages must be made to the Company in writing within five calendar days from the delivery date and disposition of the claim is solely subject to Sellers determination PRICES Prices of the Sellers Products are subject to change without notice Quotations are conditioned upon acceptance within 30 days unless otherwise staled and are subject to correction for errors and/or omissions. Prices include charges for regular packaging but, unless expressly staled, do not include charges for special requirements of government or other purchaser Prices are subject to adjustment should Buyer place an order past the validity period of the quotation or delay delivery of Products beyond the quoted lead time for any reason RETURNS No Products may be returned for cash. No Product may be returned for credit after delivery to Buyer without Buyer first receiving written permission from the Seller. Buyer must make a request for return of Product in writing to Seller at its place of business in Costa Mesa, California. A return material authorization number must be Issued by the Seller to the Buyer before a Product may be returned Par misskrrl to rolum Product to Seller by Buyer is solely and exclusively the Sellers. Product must be returned to Seller at Buyers expense, including packaging, insurance, transportation and any governmental fees Any credit for Product returned to Seller shall be subject to the inspection of and acceptance of the Product by the Seller and is at the sole discretion of the Seller LIMITED WARRANTY Subject to the terms and conditions hereof, the Seller warrants until one year akar commissioning (written notification to Seller by Buyer required) of the Product or unlit 18 months after delivery of such Product to Buyer, whichever is earlier, that each Product will be free of defects in material and workmanship If (a) the Seller receives written notification of such defect during the warranty period and the defective Products use is discontinued promptly upon discovery of alleged defect, and (b) it the owner ('Owner') forwards the Product to the Sellers nearest service/repair facility, transportation and related insurance charges prepaid The Seller will cause any Products whose defect is covered under this warranty to eilhaf be replaced or be repaired at no cost to the Owner The foregoing warranty does not cover repairs required due to repair or alleralion other than by the Sellers personnel, accident, neglect, misuse, transportation or causes other than ordinary use and maintenance in accordance with the Sellers instructions and specifications In addition, the foregoing warranty does not cover any Products, or components thereof, which are not directly manufactured by the Seller To the extent a warranty for repair or replacement of such Products or components not manufactured directly by the Seller is available to Buyer under agreements of the Seller with its vendors; the Seller will make such warranties available to Buyer. Costs of transportation of any covered defective item to and from the nearest service/repair center and related insurance will be paid or reimbursed by Buyer Any replaced Products will become the property of the Seller Any replacement Products will be warranted only for any remaining term of the original limited warranty period and not beyond that term DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITIES THE SELLER'S FOREGOING LIMITED WARRANTY IS THE EXCLUSIVE AND ONLY WARRANTY WITH RESPECT TO THE PRODUCTS AND SHALL BE IN LIEU OF ALL OTHER WARRANTIES (OTHER THAN THE WARRANTY OF TITLE), EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY STATEMENTS MADE BY EMPLOYEES, AGENTS OF THE SELLER OR OTHERS REGARDING THE PRODUCTS THE OBLIGATIONS OF THE SELLER UNDER THE FOREGOING WARRANTY SHALL BE FULLY SATISFIED BY THE REPAIR OR THE REPLACEMENT OF THE DEFECTIVE PRODUCT OR PART, AS PROVIDED ABOVE. IN NO EVENT SHALL THE SELLER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF THE SELLER TO BUYER AND OTHERS ARISING FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH BUYER'S PURCHASE, USE AND DISPOSITION OF ANY PRODUCT COVERED HEREBY SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT BY BUYER. NO ACTION, REGARDLESS OF FORM, ARISING FROM THIS AGREEMENT OR BASED UPON BUYER'S PURCHASE, USE OR DISPOSITION OF THE PRODUCTS MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, EXCEPT THAT ANY CAUSE OF ACTION FOR THE NONPAYMENT OF THE PURCHASE PRICE MAY BE BROUGHT AT ANY TIME The remedies provided to Buyer pursuant to the limited warranty, disclaimer of warranties and limitations of liabilities, described herein are the sole and exclusive remedies Unless specifically agreed to in writing by the Seller, no charges may be made to the Seller by Buyer or any third party employed by buyer for removing, installing or modifying any Product The Seller and its representatives may furnish, at no additional expense, data and engineering services relating to the application, installation, maintenance or use of the Products by Buyer The Seller will not be responsible for, and does not assume any liability whatsoever for, damages of any kind sustained either directly or indirectly by any person through the adoption or use of such data or engineering services in whole or in part CONFIDENTAIL INFORMATION Except with the Sellers prior written consent, Buyer shall not use, duplicate or disclose any confidential proprietary information delivered or disclosed by the Seller to Buyer for any purpose other than for operation or maintenance of the Products. CANCELLATION AND DEFAULT Absolutely no credit will be allowed for any change or cancellation of an order for Products by Buyer after fabrication of the Products to fill Buyers order has been commenced If Buyer shall default in paying for any Products purchased hereunder, Buyer shall be responsible for all reasonable costs and expenses, including (without limitation) attorney's fees incurred by the Seller in collecting any sums owed by Buyer All rights and remedies to the Seller hereunder or under applicable laws are cumulative and none of them shall be exclusive of any other right to remedy. No failure by the Seller to enforce any right or remedy hereunder shall be deemed to be a waiver of such right or remedy, unless a written waiver is signed by an authorized management employee of the Seller and the Sellers waiver of a breach of this agreement by Buyer shall not be deemed to be a waiver of any other breech of the same or any other pfowlsion. CHANGES IN PRODUCTS Changes may be made in materials, designs and specifications or the Products without notice. The Seller shall not incur any obligation to furnish or install any such changes or modifications on Products previously ordered by, or sold to, Buyer APPLICABLE LAW, RESOLUTION OF DISPUTES AND SEVERABILITY This agreement is entered into in Costa Mesa, California This agreement and performance by the parties hereunder shall be construed in accordance with, and governed by, the laws of the Slate of California Any claim or dispute arising from or based upon this agreement or the Products which form its subject matter shall be resolved by binding arbitration before the American Arbitration Association in Los Angeles, California, pursuant to the Commercial Arbitration Rules, excepting only that each of the parties shall be entitled to take no more than two depositions, and serve no more than 30 interrogatories, 10 requests for admissions and 20 individual requests for production of documents, such discovery to be served pursuant to the California Code of Civil Procedure Any award made by the arbitrator may be entered as a final judgment, in any court having jurisdiction to do so If any provision of this agreement shall be held by a court of competent jurisdiction or an arbitrator to be unenforceable to any extent, that provision shall be enforced to the full extent permitted by law and the remaining provisions shall remain in full force and effect ASSIGNMENT This agreement shall be binding upon the parties and their respective successors and assigns However, except for rights expressly provided to subsequent Owners of the Products under "Limited Warranty" above, any assignment of this agreement or any rights hereunder by Buyer shall be void without the Company's written consent first obtained Any exercise of rights by an Owner other than Buyer shall be subject to all of the limitations on liability and other related terms and conditions set forth in this agreement EXCLUSIVE TERMS AND CONDITIONS The 1em3s and conditions of this agreement may be changed or modified only by an insuorwrii in writing signed by ars authonzW management employee of the Seller This inetfumont, together with any amendment or supplement hereto specifically agreed to in wrillag by an authodxed management employee of the Seller, conluins the entire and the only agreement between the parties wvih rosyuCt to the sale of the Products covered hereby and supersedes any alleged related representation, promise or condition not specifically incorporated herein SELLER'S PRODUCTS ARE OFFERED FOR SALE AND SOLD ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS CONTAINED IN BUYER'S SEPARATE PURCHASE ORDERS OR OTHER ORAL OR WRITTEN COMMUNICATION, BUYER'S ORDER IS OR SHALL BE ACCEPTED BY THE COMPANY ONLY ON THE CONDITION THAT BUYER ACCEPTS AND CONSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN. IN THE ABSENCE OF BUYER'S ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN THE SELLER'S COMMENCEMENT OF PERFORMANCE AND/OR DELIVERY OF THE PRODUCTS, OR THE SELLER'S STATEMENT OF ACKNOWLEDGMENT OF THE RECEIPT OF BUYEFt'S PURCHASE ORDER, SHALL BE FOR BUYER'S CONVENIENCE ONLY AND SHALL NOT BE DEEMED OR CONSTRUED TO BE ACCF.PTANCE OF BUYER'S DIFFERING TERMS OR CONDITIONS. OR ANY OF THEM. ANY DIFFERENT OR ADDITIONAL TERMS ARE HEREBY REJECTED UNLESS SPECIFICALLY AGREED UPON IN WRITING BY AN AUTHORIZED MANAGEMENT EMPLOYEE OF THE SELLER. IF A CONTRACT IS NOT EARLIER FORMED BY MUTUAL AGREEMENT IN WRITING, BUYER'S ACCEPTANCE OF ANY PRODUCTS COVERED HEREBY SHALL BE DEEMED ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS STATED HEREIN THE SELLER'S FAILURE TO OBJECT TO PROVISIONS INCONSISTENT HEREWITH CONTAINED IN ANY COMMUNICATION FROM BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS CONTAINED HEREIN F360JWCE0107 Customer Service Center 2600 S. Garnsey Street on1wimmen Santa Ana, CA 92707 USA my l® Phone: 949 833-3888 Toll Free: 800 331-2277 Fax: 714 549-4007 any assignment of this agreement or any rights hereunder by Buyer shall be void without the Company's written consent first obtained Any exercise of rights by an Owner other than Buyer shall be subject to all of the limitations on liability and other related terms and conditions set forth in this agreement EXCLUSIVE TERMS AND CONDITIONS The 1em3s and conditions of this agreement may be changed or modified only by an insuorwrii in writing signed by ars authonzW management employee of the Seller This inetfumont, together with any amendment or supplement hereto specifically agreed to in wrillag by an authodxed management employee of the Seller, conluins the entire and the only agreement between the parties wvih rosyuCt to the sale of the Products covered hereby and supersedes any alleged related representation, promise or condition not specifically incorporated herein SELLER'S PRODUCTS ARE OFFERED FOR SALE AND SOLD ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS CONTAINED IN BUYER'S SEPARATE PURCHASE ORDERS OR OTHER ORAL OR WRITTEN COMMUNICATION, BUYER'S ORDER IS OR SHALL BE ACCEPTED BY THE COMPANY ONLY ON THE CONDITION THAT BUYER ACCEPTS AND CONSENTS TO THE TERMS AND CONDITIONS CONTAINED HEREIN. IN THE ABSENCE OF BUYER'S ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN THE SELLER'S COMMENCEMENT OF PERFORMANCE AND/OR DELIVERY OF THE PRODUCTS, OR THE SELLER'S STATEMENT OF ACKNOWLEDGMENT OF THE RECEIPT OF BUYEFt'S PURCHASE ORDER, SHALL BE FOR BUYER'S CONVENIENCE ONLY AND SHALL NOT BE DEEMED OR CONSTRUED TO BE ACCF.PTANCE OF BUYER'S DIFFERING TERMS OR CONDITIONS. OR ANY OF THEM. ANY DIFFERENT OR ADDITIONAL TERMS ARE HEREBY REJECTED UNLESS SPECIFICALLY AGREED UPON IN WRITING BY AN AUTHORIZED MANAGEMENT EMPLOYEE OF THE SELLER. IF A CONTRACT IS NOT EARLIER FORMED BY MUTUAL AGREEMENT IN WRITING, BUYER'S ACCEPTANCE OF ANY PRODUCTS COVERED HEREBY SHALL BE DEEMED ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS STATED HEREIN THE SELLER'S FAILURE TO OBJECT TO PROVISIONS INCONSISTENT HEREWITH CONTAINED IN ANY COMMUNICATION FROM BUYER SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS CONTAINED HEREIN F360JWCE0107