Terms & Conditions

Applicable Terms and Conditions. The services provided by Universal Controls, LLC. (UC) shall be performed in accordance with generally accepted professional practice at the time when, and the place where, the services are rendered. Universal Controls, LLC services are defined by and limited to those services described in the Proposal, which are incorporated by this reference. Together, the Proposal and Contract form the entire Agreement and supersede all prior negotiations, representations, or agreements, either written or oral.

2. Applicable Terms and Conditions. The Client shall require that its consultants maintain professional liability insurance as appropriate to the services provided. The Client shall furnish tests, inspections (FIRE CODE) and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. The Client shall provide prompt written notice to (UC) if the Client becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in Universal Controls, LLC Instruments of Service. Except as otherwise provided in this Agreement, or when direct communications have been specially authorized, the Client shall endeavor to communicate with the Contractor and Universal Controls, LLC consultants though (UC) about matters relating to the Contract Documents. The Client shall promptly notify (UC) of any direct communications that may affect Universal Controls, LLC services. Before executing the contract for Construction. The Client shall provide (UC) a copy of the executed agreement between the Client and Contractor, including the General Conditions of the Contract for Construction. The license granted under this section permits the Client to authorize the Contractor, Subcontractor, and material or equipment suppliers, as well as the Client’s consultants and separate contractors, to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services or construction for the Project. If (UC) rightfully terminates this Agreement for cause as provided within this agreement, the license granted in this section shall terminate. In the event the Client uses the Instruments of Service without retaining the author of the Instrument of Service, the Client releases Universal Controls, LLC consultant(s) from all claims and causes of action arising from such uses. The Client, to the extent permitted by law, further agrees to indemnify and hold harmless (UC) and its consultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Client’s use of the Instruments of Service under this section.

3. Applicable Terms and Conditions. The term “Equipment” wherever used in this Agreement shall mean all ofthe equipment, accessories, parts, and supplies described on page 1 and purchased or leased by Buyer under this Sale Agreement (the “Agreement”). All quotations, orders, acknowledgments, confirmations and invoices and the sale, lease or license by Seller of the Equipment, and purchased or licensed by Buyer under this Agreement shall be governed solely by the terms and conditions specified herein. Any additional or supplemental terms or conditions proposed by Buyer (whether orally or in writing) are hereby rejected by Seller. 

4. Subject to Seller's Written Acceptance. This transaction is subject to credit approval and written acceptance and confirmation by an authorized officer or employee of Seller, and such acceptance is expressly conditioned upon Buyer's agreement and assent to Seller's terms and conditions set forth herein and in the attachments, if any. Upon the express written acceptance by Seller, this Agreement shall constitute the complete agreement between the parties. This Agreement is a firm Agreement and shall not be withdrawn by the Buyer for want or lack of consideration, nor shall the Buyer attempt to amend this Agreement without the express written approval of Seller. Any additional or different provisions to this Agreement shall be deemed material and are hereby objected to and rejected. No person has authority to make any claim, representation, warranty, promise, guarantee or commitment on behalf of Seller which is not expressed herein. 

5. Prices; Title; Risk of Loss. All prices are: Ex Works - Seller’s shipping point, as such term is understood per Incoterms 2010, and title shall pass to Buyer upon delivery to Buyer’s premises and the risk of loss, destruction and damage while in transit shall be borne by Seller. If there is a delay in completion of shipment of the Equipment purchased under this Agreement due to any change requested by Buyer or any delay on Buyer’s part in furnishing information required for completion of this Agreement, the price agreed upon at the time of acceptance of this Agreement by Seller is subject to increase. Terms and Conditions of Sale Page 6 of 10 

6. (a) Taxes. Prices stated herein are exclusive of all sales, use, excise, transfer and similar taxes, duties, levies, tariffs and other charges imposed by any governmental authority or agency, all of which shall be the sole and exclusive responsibility and obligation of Buyer. If such taxes are not included in an invoice for the Equipment, they may be invoiced separately later. 

7. Security Interest. Buyer hereby grants Seller a purchase money security interest (“PMSI”) in the Equipment purchased and any proceeds thereof. The PMSI shall continue until payment in full of the entire purchase price of the Equipment and performance by Buyer of any other obligations hereunder. Seller is entitled to all remedies of a secured party after default under the Uniform Commercial Code in addition to all other rights provided by contract and by operation of law. Buyer agrees to pay to Seller, in addition to the interest on overdue sums due, reasonable attorney fees, court costs and other expenses of Seller incurred in enforcing Seller's rights under its PMSI. The Equipment purchased shall remain personal property and shall not become or be deemed a fixture or a part of any real estate on which it may be located. Buyer authorizes Seller to file any instrument or document considered necessary by Seller to perfect or enforce its PMSI in the Equipment including, but not limited to, financing statements, chattel mortgages, deeds of trust, deeds to secure debt, mortgages or other security instruments. 

8. Handling Charges; Alterations to Premises, Etc. Seller shall arrange for the shipment of the Equipment to Buyer and shall charge Buyer for such shipment as set forth on the face page hereof. Prices are exclusive of handling charges for inside delivery of equipment, uncrating and installation. 

9. Terms of Payment; Interest on Overdue Accounts. Invoices shall be forwarded to Buyer upon shipment and shall be due and payable to Seller in full upon receipt thereof, in accordance with the payment terms set forth in this Agreement, without abatement, set-off or deduction of any amount whatsoever and despite any defense or counterclaim Buyer may have against Seller. Payment terms are stated on page 1. Any amounts which are past due shall incur interest on theunpaid amount at the rate of 1.5% per month, or the maximum lawful rate allowed under applicable law, whichever is less. In addition, Buyer shall pay all collection costs (including reasonable attorneys' fees and expenses) if collected by or through an attorney-at-law. 

10.Delivery Dates; Partial Shipments. Delivery dates specified herein are not subject to change, and Seller herein guarantees the date of delivery as set forth above in respect thereof. Seller reserves the right to ship all or part of the Equipment when the same shall be ready for shipment. If partial shipments are made, proportionate payments shall be due and payable upon receipt of the invoice for each partial shipment. In the event Buyer is unable to receive shipment, Seller shall store the Equipment at Buyer's risk and expense. 

11. Installation. Prior to installation, the power and connections of the building in which the equipment is being installed should be per code and validated by a licensed electrician in order to validate the New Equipment Standard Limited Warranty (“Warranty”) provided herein. Prior to installation, Buyer shall not handle, attempt to operate, or operate any Equipment except in the presence and under the supervision of a certified and licensed electrician. After installation of the Equipment in accordance with local governing electrical code, Buyer will not modify any Equipment without prior notification to and express written permission fromSeller. 

12.All Sales Final; No Returns. Unless otherwise specified, all sales are final, and except in the case of defective Equipment subject to Warranty, Equipment may not be returned (whether for credit, refund, exchange or otherwise) by Buyer for any reason. 

13.Indemnities. Seller will indemnify and save harmless Buyer from and against any direct claims, demands, losses, or damages made against or incurred by Buyer directly related to the negligence of Seller or its employees in providing the Equipment and Services described herein. Seller shall exercise the same degree of care, skill and diligence in the performance of its obligations hereunder as is ordinarily possessed and exercised by individuals experienced in the industry. Page 7 of 10 

14.Limitation of Damages. THE MAXIMUM LIABILITY OF SELLER HEREUNDER SHALL IN NO EVENT EXCEED THE ACTUAL DAMAGES INCURRED BY THE BUYER AND BUYER HEREBY RELEASES SELLER FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMAND IN EXCESS OF THIS LIMITATION. NOTWITHSTANDING THE FOREGOING, AND IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER TO BUYER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) SUFFERED OR INCURRED BY BUYER OR SUCH OTHER PERSON EVEN IF SELLER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. 

15.Trade-In Equipment. Trade-In Equipment, if any, shall be expressly identified in Exhibit A and shall be readied by Buyer at Buyer's expense for pickup by Seller at the time of delivery by Seller of the Equipment specified on the front side hereof. Buyer's failure to observe this requirement shall subject Buyer to supplemental charges for removal and cartage at prevailing service call, labor and freight rates. 

16.Remedies. Without waiving any other rights or remedies available to it under applicable law or otherwise, Seller may, at its option, defer shipment or deliveries hereunder, or under or pursuant to any other contract, agreement or other oral or written agreement with Buyer, until all past due accounts of Buyer to Seller have been satisfied in full. If Buyer fails to make payment when due and Seller determines its obligations hereunder to be insecure, Buyer shall promptly return to Seller, on demand, all Equipment furnished to Buyer hereunder for which payment in full has not been made, and if Buyer fails to so return such Equipment, Seller may, to the extent permitted by law, with or without notice and with or without legal process, enter upon any premises where such Equipment may be located and take possession of the same. Seller may then sell such Equipment, with or without notice, at private or public sale at which Seller may purchase, and the proceeds of such sale, less expenses of retaking, repairing, holding and reselling, will be applied to the unpaid purchase price without release of any deficiency, which deficiency (if any) shall be promptly paid by Buyer. Any surplus above the unpaid balance shall however be remitted by Seller to Buyer. 

17.Revision of Payment Terms. Seller reserves the right to revise the payment terms provided for hereunder, including without limitation requiring cash payment before shipment, due to changes in Buyer's credit rating or credit worthiness, as determined by Seller in its sole discretion. 

18.Force Majeure. In no event shall Seller be responsible for any delay in or failure of performance hereunder where such delay or failure is due to causes beyond Seller's reasonable control, including without limitation fire, storm, flood, earthquake, explosion, accident, war, civil unrest, sabotage, epidemic, quarantine, material shortage, fuel or energy shortage, strike, work stoppage, labor unrest, freight embargo, transportation shortage or delay, governmental act, judicial order or act of God. 

19.Governing Law; Jurisdiction and Venue. This agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Colorado. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the city of Boulder and county of Boulder (in the case of a state court) or the City and County of Denver (in the case of a federal court), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. 

20.Amendment. This agreement may be amended, modified, or supplemented only by a written instrument executed by each of the parties hereto. Page 8 of 10 

21.Waiver. The failure of either party hereto, at any time, to require performance by the other party of any of its obligations hereunder shall in no way affect the full right to require such performance at any time thereafter. The waiver by either party hereto of any remedy with respect to a breach of any provision hereof shall not be taken as a waiver of a remedy with respect to any succeeding breach of such provision or any breach of any other provision. 

22.Severability. The parties agree that each provision contained in these Terms and Conditions of Sale shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in these Terms and Conditions of Sale shall, for any reason, be held to be unenforceable, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the extent compatible with the applicable law. 

23.Cancellation. Once accepted by Seller, this Agreement is not cancelable, in whole or in part, unless such cancellation is mutually agreed to in writing by both parties. 24.Assignment. Seller may assign its obligations hereunder to Seller's parent or any subsidiary or other affiliated corporation or entity. Buyer shall not have the right to assign or transfer any of its rights or obligations under the agreement to any third party, without the prior written consent of Seller, said consent not to be unreasonably withheld. 

24.Integration; Modification. The provisions hereof, including all attachments hereto, if any, represent the entire agreement between the parties with respect to the purchase and/or licensing of the Equipment, and cancel all prior understanding, written or oral. No amendment, waiver, or cancellation of any part of the Agreement shall be valid unless in writing and signed by an authorized representative of both parties. 

25. Purchase Order. If a purchase order is issued by Buyer, or by any third party on behalf of Buyer, in connection with the purchase of the Equipment, none of the terms and conditions contained in such Purchase Order shall modify or supersede the terms and conditions of this Agreement. Seller’s failure to object to terms contained in any such Purchase Order, or other communication from or on behalf of Buyer, shall not be a waiver of the terms set forth in this provision or in this Agreement. 

26. Headings. All headings or captions used herein are for convenience of reference only and shall not limit or define these terms and conditions. 

27. Confidential and Proprietary Information. Any information, correspondence, drawings, manuals and other documents transmitted or communicated by Seller to Buyer which is (a) by its nature; (b) described by Seller as; or (c) reasonably believed by Buyer to be, confidential and/or proprietary (whether or not marked “confidential” or “proprietary”), shall be received and treated by Buyer in secrecy and confidence, and shall not be used by Buyer for any purpose except the purpose stated herein or otherwise authorized in writing by Seller, or disclosed by Buyer to any person or firm without the prior express written consent of Seller. Such confidential and proprietary information may be disseminated within Buyer’s own organization only to the extent reasonably required for the proper operation of the System.