NILFISK, INC.
subsidiaries, and affiliates (collectively, “Indemnitees”) from and against any and all
FIELD SERVICE TERMS & CONDITIONS
AGREEMENT. These Field Service Terms & Conditions are applicable to any service
request placed by Customer. Upon Nilfisk’s acceptance of a service request, Nilfisk or
an authorized Nilfisk service provider will provide the services to the Customer
pursuant to these Ts&Cs. For the avoidance of doubt, the term “Nilfisk” expressly
includes authorized Nilfisk service providers and Customer acknowledges and accepts
that Nilfisk may use authorized Nilfisk services providers to perform the services.
Unless otherwise stated in writing by Nilfisk in advance, Nilfisk’s acceptance of
Customer’s service request does not modify these Ts&Cs, and Nilfisk rejects any
conflicting or additional terms or conditions in Customer’s service request or any
other documents. After acceptance by Nilfisk, Customer’s service request cannot be
cancelled or changed by Customer without Nilfisk’s prior written consent. In the
event a quoted service is declined, Nilfisk shall bill for any applicable diagnostic time
and materials used.
PRICE; TAXES. The prices payable by Customer for the services to be provided by
Nilfisk may be set forth in Customer’s service request but, in any event, must be
accepted by Nilfisk to be valid. Unless otherwise stated in a service request expressly
accepted by Nilfisk, all prices exclude taxes.
PAYMENT TERMS. Unless otherwise expressly stated in writing by Nilfisk in advance,
payment terms are Net 30 calendar days after the date of Nilfisk’s invoice. If
Customer fails to pay an invoiced amount within terms, Customer will pay a finance
charge of 1.5% per month. Upon Customer’s late balance or if Nilfisk has a reasonable
doubt about Customer’s financial condition, Nilfisk may decline to make provide
additional services until Customer makes full payment or otherwise provides security
reasonably satisfactory to Nilfisk. If Customer’s account is more than 90 days in
arrears, Customer must reimburse Nilfisk for the reasonable costs (including
attorneys’ fees) of collecting those amounts.
DELIVERY TERMS. Unless otherwise stated in a Customer service request expressly
accepted by Nilfisk, all delivery terms, including transportation, freight, insurance, risk
of loss and any other shipping costs, are F.O.B. Nilfisk’s shipping point or as otherwise
expressly provided in writing by Nilfisk. Unless otherwise instructed, selection of
carrier and routing of all shipments is at Nilfisk’s discretion.
INSPECTION AND ACCEPTANCE. Customer must inspect the results of the services
provided and report claims for defects in writing within 10 days of provision of the
services or the services will be deemed irrevocably accepted and such claims will be
deemed waived.
NO OWNERSHIP OR LICENSE. Nilfisk’s provision of any products to Customer as part
of its provision of its services does not create or transfer ownership of any of Nilfisk’s
intellectual property rights to Customer, or constitute a license, implied or otherwise,
for the use of any intellectual property rights of Nilfisk or other third parties.
WARRANTY. Product warranties for parts provided as part of Nilfisk’s provision of
services are provided in the labeling and literature accompanying such products and
are provided “as of” the date of the provision of services by Nilfisk. THESE
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. Nilfisk makes no other
warranties of any kind. Any repair or attempt to repair products by anyone other than
an authorized Nilfisk representative automatically voids any warranty on those
products. The warranty is also void if the products are misused or abused. Any oral or
written statement concerning the products that is inconsistent with the warranty
provided in the labeling and literature is of no force or effect. Products may be
returned only with prior written approval from Nilfisk. Any products returned will be
at Buyer’s expense and no allowance for, nor replacement of, defective product
covered by warranty will be made unless the alleged defects are established to the
satisfaction of Nilfisk after its tests and inspections of the applicable product(s).
Notwithstanding the foregoing, if Nilfisk performs services on products that were not
manufactured by Nilfisk, Nilfisk will offer a 90-day warranty on parts and labor.
LIMITATION OF LIABILITY. In no event will Nilfisk be liable for any indirect,
consequential, collateral, special or incidental damages (including, without limitation,
loss of profits or goodwill), or punitive damages, whether such claim is based on
contract, tort, statutory strict liability, warranty, or any other theory of liability, even
if the affected party is advised in advance of the possibility of such damages. Nilfisk’s
total liability for damages under these Ts&Cs and any order will not exceed
Customer’s purchase price for the particular service(s) or product(s) from which the
claim(s) arose.
INDEMNIFICATION. The indemnifying party (“Indemnitor”), will indemnify, defend
and hold harmless the indemnified party, its officers, directors, employees, agents,
claims, damages, liabilities, and expenses (including attorney fees) arising from any
third-party claim based on Indemnitor’s breach of any representation, warranty,
covenant, agreement, or obligation under these Ts&Cs or an order, or Indemnitor’s
grossly negligent and/or willful acts in carrying out its obligations under these Ts&Cs
or an order. Neither party will be responsible for indemnifying another party where
the basis of the indemnity claim arises out of such other party’s own negligence or
willful misconduct. In order to avail itself of this indemnity provision, Indemnitee
must promptly provide notice to Indemnitor of any such claim, tender the defense of
the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim.
Indemnitor will not be liable for any cost, expense, or compromise incurred or made
by Indemnitee in any legal action without the Indemnitor’s prior written consent.
CONFIDENTIAL INFORMATION. Any information that parties receive or otherwise
have access to incidental to or in connection with these Ts&Cs (collectively,
“Confidential Information”), is and will remain the property of the disclosing party.
Confidential Information does not include information which: (i) was in the
possession of the receiving party at the time it was first disclosed by the disclosing
party; (ii) was in the public domain at the time it was disclosed to the receiving party;
(iii) enters the public domain through sources independent of the receiving party and
through no breach of this provision by the receiving party; (iv) is made available by
the disclosing party to a third party on an unrestricted, non-confidential basis; (v) was
lawfully obtained by the receiving party from a third party not known by the receiving
party to be under an obligation of confidentiality to the disclosing party; or (vi) was at
any time developed by the receiving party independently of any disclosure by the
disclosing party. Confidential Information may be used to the extent necessary to
perform under these Ts&Cs and the parties will not disclose Confidential Information
to any third party, except to its agents (who have agreed to confidentiality obligations
at least as restrictive as these) as necessary for the transactions. In no event will
Customer acquire any right, title or interest in and to any product or process
information, including related know-how, either existing or developed during the
course of the business relationship with Nilfisk and Customer, and in no event will
Nilfisk acquire and right, title, or interest in and to any materials or information
provided to it by Customer.
COMPLIANCE WITH LAW. Each party will comply with all state, federal and local laws
and regulations applicable to its performance under these Ts&Cs.
APPLICABLE LAW. These Ts&Cs and any Customer service request are governed by
and construed in accordance with the internal laws (and not the laws of conflicts) of
the State of Minnesota, and the federal and state courts of Minnesota have exclusive
jurisdiction and venue of any dispute relating to these Ts&Cs and any Customer
service request, or the business relationship between Nilfisk and Customer.
FORCE MAJEURE. Neither party will be liable for any failure to perform or delay in
performance of these Ts&Cs or any order, due in whole or in part, directly or
indirectly, to fire, act of God, strike, lockout, labor disruption, lack of raw materials,
supplies or components, retooling, upgrading of technology, delays of carriers,
embargo, government order or directive, civil insurrection or disruption, riots,
cyberattacks, pandemics, or any other circumstance beyond the affected party’s
commercially reasonable control.
MISCELLANEOUS. These Ts&Cs, Customer’s service request, and Nilfisk’s
acknowledgement Customer’s service request, if any, constitute the entire agreement
between Niflisk and Customer, and supersede all other agreements and
understandings, whether written or oral, between the parties with respect to this
subject matter. The failure by either party to enforce any of the provisions of these
Ts&Cs will not be construed as a waiver of such provisions nor a waiver of the right of
that party to enforce such provisions in the future. In the event that provision of
these Ts&Cs or any order is held by a tribunal of competent jurisdiction to be contrary
to the law, the remaining provisions of these Ts&Cs and the applicable service
request will remain in full force and effect. All sections relating to payment,
ownership, confidentiality, indemnification and duties of defense, representations
and warranties, waiver, and provisions which by their terms extend beyond the term
will survive the termination of these Ts&Cs and any order. These Ts&Cs and any order
may not be modified except by written agreement signed by the both parties. Except
as otherwise provided, these Ts&Cs and any Customer service request are binding
upon and inure to the benefit of the parties’ successors and lawful assigns. Nilfisk and
Customer are separate entities and nothing in these Ts&Cs or any Customer service
request will be construed as creating an employer-employee or joint venture
relationship.
Nilfisk, Inc. Field Service Ts&Cs June 5, 2018