TERMS AND CONDITIONS

Colorado Standby, LLC

Standard Terms and Conditions

 

You (“You” or “Buyer”) agree that these Standard Terms and Conditions apply to all requests for products or services, quotations, estimates, consultations, orders, service authorizations, invoices, written instructions, completed forms, and other agreements with Colorado Standby, LLC (“Seller”) (such documents, together with these Standard Terms and Conditions, the “Agreement”).  If these Standard Terms and Conditions are modified in a writing prepared and agreed by Seller, or by the information included at Seller’s then-current website found at www.coloradostandby.com (the “Website”), such modified terms and conditions shall govern, and the remaining terms and conditions herein that are not modified shall apply.  To the extent that these terms and conditions conflict with any writing or form prepared by Buyer, these terms and conditions shall control, and such Buyer terms shall be of no force or effect.               

1. Sale of Equipment and Services

Seller is an authorized distributor and seller of generators and other power generation equipment, products, accessories, and materials required for installation and operation thereof (collectively “Equipment”).  Not all Equipment sales include installation or other service in the purchase price. Seller is also a provider of services to install, maintain, repair, provide warranty services, ship, deliver and store Equipment it sells as well as for equipment sold by third parties (collectively the “Services”).  A listing of the Equipment and Services currently offered by Seller is on the Website. Seller will provide Equipment and Services to Buyer in accordance with the Agreement and the terms included on the Website. If Seller agrees to customize or design Equipment or accessories for Buyer, such custom Services may be provided by a third party engineering firm and will not be separately warranted by Seller.  
2. Quotes; Orders; Pricing; Returns/Cancellation

2.01.  Quotes. Upon your request, Seller will provide a quote or estimate for the Equipment and Services requested by you (“Quote(s)”).   Quotes will include any deposit that must be paid upon placing an Order (“Deposit(s)”), the Price of the Equipment, estimates for shipping, freight, insurance, and storage, as applicable, and any specific requirements related to the Equipment or Services.  Quotes for Services may provide Prices that are be fixed fees, hourly rates, or estimates to complete the Services requested and Deposit requirements. Installation Service estimates will include responsibilities that must be performed by Buyer (or the owner of the property where the Equipment will be installed) and other specific requirements. Buyer agrees to sign the applicable estimate and a Service Authorization if it elects to purchase Services. Services Quotes may reference other documents, the Website, or site preparation requirements, or include information about Equipment warranties, instruction regarding freight receiving, drop off and pick-up of Equipment to be serviced, and other requirements of the sale which are binding on the parties.    

2.02. Orders. Orders for the purchase of Equipment and Services (“Order(s)”) may be submitted to Seller by signing the Quote and returning it to Seller, using the Website shopping functionality, sending an Order by email or mail, or making an Order in person to an authorized representative of Seller.  Orders that are not signed Quotes shall specify (i) the Equipment or Service being ordered, (ii) the shipping or address where the Services will be performed, (iii) a requested delivery date or performance date; and (iv) the Price.   Deposits must be paid in full when submitting the Order. When buying Services, Buyer agrees to sign the applicable estimate and Service Authorization.

2.03. Price. Pricing for Equipment and Services will be in U.S. dollars at the prices listed on the Website when Buyer makes the Order (the “Price(s)”) unless a different Price has been agreed by the Parties and reflected in the Quote. Seller may, in its discretion, adjust Prices although Seller will not adjust Prices for Orders that have already been accepted by Seller.  Prices do not include, and Seller shall not be responsible for, federal, state or local sales or other taxes, or other fees payable by Buyer.              

2.04 Acceptance of Orders by Seller. Orders are subject to acceptance by Seller. Seller must receive a valid payment method prior to acceptance.  If Seller cannot meet a requested delivery date or Service date it will provide Buyer with an alternative date. If Buyer cannot accept the alternative date, it must inform Seller in writing with enough time to agree to a date acceptable to both parties.  Notwithstanding the foregoing, Seller reserves the right to refuse, cancel or delay any Order placed by Buyer and accepted by Seller when Buyer is delinquent in any payments or when Buyer has failed to perform any of its material obligations under the Agreement.

2.05 Returns/Cancellation by Buyer. Buyer may return purchased Equipment within thirty (30) calendar days, subject to the Equipment being returned to Seller, at Buyer’s cost, in its original packaging, in new, unused condition.   Seller will issue a refund of the Price, less a restocking fee of twenty percent (20%), any shipping or other charges incurred by Seller and not already paid by Buyer, and any damage to the Equipment.  For additional information on Seller’s Equipment return and cancellation policy see the Website at www.coloradostandby.com/terms.  If Services are cancelled by Buyer, Buyer shall pay Seller for all Services performed prior to the date of cancellation.  If Buyer cancels the Services after the schedule has been confirmed by Seller, but before any Services are performed, Buyer will not receive any refund of the deposit paid for the cancelled Services.      

3. Invoices and Payment; Payment Card; Credit Terms

3.01. Invoices; Payment. Seller shall charge the agreed payment method or invoice Buyer for the Equipment or Services in accordance with the schedule provided on the Quote, any Credit Terms (defined below) granted by Seller, or as otherwise agreed by the parties. If Orders are made on the Website, Buyer shall pay the Prices and/or Deposits upon check out or on the schedule specified on the Website.  Buyer shall timely pay one-hundred percent (100%) of all amounts due to Seller without abatement, reduction, or setoff for any reason.  If Buyer fails to make timely payment, Seller may, at its option, cancel the Order, delay delivery or performance of Services, or charge interest at the rate of 1.5% per month in addition to the Price.  All payments due hereunder must be made by Payment Card, ACH or wire transfer, or such other method as may be agreed by the parties.           

3.02 Payment Cards. Unless otherwise agreed by Seller in writing, a valid payment method must be received from Buyer when the Order is placed.  If paying by payment card such as a credit or debit card (“Payment Card(s)”) Buyer represents and warrants that (i) the Payment Card information supplied is true, correct, and complete, (ii) the Buyer or the representative providing the information is duly authorized to use such Payment Card for the Order, (iii) charges, including recurring charges, incurred by Buyer will be honored by the Payment Card company, and (iv) Buyer  will pay all charges incurred under this Agreement, including all applicable taxes, interest and late payment penalties.  Buyer or Buyer’s representative agrees to provide identification and complete any documentation required by Seller to verify the authority to use the Payment Card and otherwise prevent fraud.  If the Payment Card provided cannot be processed, and Buyer does not provide alternative Payment Card information the Order may be cancelled.

3.03. Credit Terms. Seller may, but shall not be obligated to, grant credit terms or alternative payment terms (collectively “Credit Terms”) to Buyer. If Seller does grant Buyer Credit Terms, Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of the Credit Terms to be allowed Buyer, either generally or with respect to a particular Order. Buyer agrees to provide Seller with financial statements and other evidence of corporate and financial standing, or with individual or corporate guarantees, or other security as Seller may reasonably request from time to time to evaluate Buyer’s credit risk and/or ensure Buyer’s payment and other performance.    

4. Shipment; Pick-up; Risk of Loss

4.01.  For Equipment purchased from Seller, Seller will not ship, or allow pick-up of, any Equipment that has not been paid as required by the Agreement. If not picked up by Buyer from Seller’s facility, Equipment will be delivered to Buyer in accordance with the Order. Any expense for any special packaging or any special delivery requested by Buyer shall be borne solely by Buyer. Buyer shall be responsible for any and all freight, shipment, customs, duties and insurance charges associated with shipment of the Equipment, even if the order is rejected by Buyer upon delivery.  Shipping rates quoted by Seller will be for shipment to the continental US unless Buyer requests shipment to a location outside that area in which case additional rates and charges, including charges for customs and other fees (if applicable), will apply and be paid by Buyer.  See Website www.coloradostandby.com/terms for additional shipping requirements.  Risk of loss shall pass F.O.B. Buyer’s location. Buyer shall immediately inspect and follow all freight receiving instructions provided by Seller or Buyer will be barred from rejecting delivery or claiming any damage to the Equipment.   If Buyer has agreed to pick up Equipment at Seller’s facility, but fails to do so timely, Buyer may be charged storage fees.  Title to the Equipment will pass to Buyer with Buyer is in possession of the Equipment and has paid for it in full.

4.02. For Equipment sent to, or dropped off at, Buyer’s facility to receive Services from Seller, Buyer agrees to sign any drop-off or Service authorization documents required by Seller to provide Services and/or store the Equipment at Seller’s location.  Buyer may be subject to additional storage, or other fees, if Buyer fails to timely pick-up the Equipment. While in Seller’s possession and control, Seller shall bear the risk of loss of Buyer owned Equipment if Buyer has complied with the Agreement and paid all storage fees.  If Buyer Equipment is lost or damaged while at Seller’s facility due to Seller’s fault, Seller shall be responsible for such loss or damage up to the value of Buyer Equipment when it arrived at Seller’s facility (not replacement value). If Buyer believes the Equipment has been damaged while on Seller premises, Seller must file a written claim with Seller within fifteen (15) days of picking up the Equipment, specifying the nature of the damage.  If Buyer fails to timely file a claim, Buyer waives any right to claim damage.                

4.03 If Buyer fails to remove Equipment at Seller’s facility on the pick-up date agreed by the parties, or fails to timely pay storage charges or otherwise comply with Seller’s storage policies for Equipment stored at Seller’s facility, Seller may provide Buyer with thirty (30) days’ written notice to pay all amounts owed and remove the Equipment or  Seller will, at its option and at Buyer’s expense  (A) sell the Equipment at public or private sale at any time or place and on any terms that are commercially reasonable, including selling the Equipment for salvage value; or (B) if the Equipment is not operational, or has no commercial value in its stored condition, Seller may dispose of the Equipment.  All costs incurred by Seller to sell or dispose of the Equipment, including without limitation, administrative costs, professional fees, and collection costs, must be reimbursed by Buyer. The proceeds of any sale of the Equipment will be applied first to all damages and amounts owed to Seller by Buyer under the Agreement before any proceeds are paid to Buyer.   If the proceeds are not sufficient to pay all amounts due to Seller, Seller may exercise all rights it has at law, in equity, and under this Agreement to collect from Buyer.

 

5. Warranties; Remedies

5.01 Equipment Warranty. THE WARRANTY FOR NEW EQUIPMENT IS THE MANUFACTURER’S STANDARD WARRANTY FOR THE EQUIPMENT. SELLER DOES NOT PROVIDE A WARRANTY FOR EQUIPMENT BUT SELLER WILL ASSIST BUYER TO CONTACT THE MANUFACTURER TO MAKE WARRANTY CLAIMS AS APPROPRIATE UNDER THE MANUFACTURER’S WARRANTY.   SELLER MAY PERFORM WARRANTY SERVICES AS INSTRUCTED BY THE MANUFACTURER AND IN ACCORDANCE WITH SECTION 5.02 BELOW.   USED EQUIPMENT IS "AS IS" UNLESS SELLER SPECIFICALLY PROVIDES A WRITTEN WARRANTY FOR REFURBISHED OR USED EQUIPMENT. IF SELLER PROVIDES A LIMITED WARRANTY FOR USED EQUIPMENT, BUYER’S SOLE REMEDY, AT SELLER’S OPTION, IS  REPAIR OF THE USED EQUIPMENT OR REFUND OF THE PURCHASE PRICE. 

 

5.02 Warranty Services. If the Equipment is under manufacturer’s warranty and Seller is engaged to perform the warranty services (whether Seller originally sold the Equipment to Buyer or not), Seller will perform the warranty services in accordance with the manufacturer’s warranty. If Seller incurs expenses not covered by the manufacturer’s warranty, or if repairs not covered by the manufacturer’s warranty are required to correct damage, for safety reasons or to return the Equipment to working order, or if Buyer requests additional Services, Buyer agrees to pay any amount for such Services and expenses not paid by the manufacturer.  Besides expenses not covered by the manufacturer’s warranty, additional costs could include, but are not limited to, hourly rates for travel time, mileage to the location of the Equipment, and parts and labor not covered by the manufacturer’s warranty.  Upon request, Buyer will provide Payment Card information to with authorization to charge the Payment Card for payment of such additional costs.

 

5.03 Seller’s Service Warranty. Although Seller personnel may provide guidance to Buyer about Equipment options based on the information provided by Buyer, it is Buyer’s responsibility to validate with appropriate experts, such as an electrical engineering firm, that the Equipment purchased by Buyer is suitable for Buyer’s purposes. Seller cannot guarantee Equipment sent for Service can be repaired or that the Equipment will achieve “like new” performance after Services are performed. Seller is not responsible for Equipment damage or defects resulting from the condition of the Equipment when Service is requested, or it is dropped off for Service, or for any conditions or damages not caused by Seller. Except for custom Services and Equipment selection guidance offered by Seller personnel which are not warranted by Seller, Seller warrants that Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices.  Seller shall, as its sole obligation and Buyer’s sole and exclusive remedy for any breach of the service warranty set forth in this Section, re-perform the Services which gave rise to the breach or, at the Seller’s option, refund the Price paid by Buyer for the Services which gave rise to the breach if Buyer notifies the Seller in writing of the breach within forty-five (45) days following completion of the defective Services, specifying the breach in reasonable detail.  If Buyer does not timely notify Seller of defective Services, Buyer shall be deemed to have accepted all Services and materials provided by Seller without condition.                

5.04 Limitation. EXCEPT AS SPECIFIED IN SECTIONS 5.01, 5.02, AND 5.03 ABOVE, SELLER DOES NOT PROVIDE ANY WARRANTY FOR THE EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OR THE IMPLIED WARRANTIES THAT THEY ARE OF MERCHANTABLE QUALITY OR THAT THEY CAN BE USED FOR ANY PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.  NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY SELLER OR ANY OF ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE, DURATION OR REMEDY OF ANY WARRANTY.  NO WARRANTY APPLIES TO EQUIPMENT OR SERVICES NOT PROVIDED BY SELLER OR TO THE EXTENT BUYER, ANY BUYER AGENT OR REPRESENTATIVE, OR ANY THIRD PARTY MODIFIES OR ALTERS THE EQUIPMENT OR SERVICES WITHOUT SELLER’S ADVANCE WRITTEN APPROVAL AND CONSENT.

 

6. Limitation of Liability; Actions. IN NO EVENT SHALL SELLER BE LIABLE UNDER THE AGREEMENT TO THE BUYER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SELLER’S AGGREGATE LIABILITY UNDER THE AGREEMENT FOR ANY DAMAGES SHALL NOT EXCEED THE PRICE PAID BY THE BUYER TO THE SELLER UNDER THE AGREEMENT FOR THE EQUIPMENT OR SERVICES WHICH GAVE RISE TO THE DAMAGES.               

7. Buyer’s Representations and Warranties. Buyer represents and warrants to the Seller that (i) its purchase of Equipment and Services and performance under the Agreement does not violate any applicable laws, existing obligations, or contracts of the Buyer; (ii) it has the full legal right, power, and authority to enter into and perform the Agreement; and (iii) it will comply with all requirements of the Agreement. Buyer further warrants that it will give permission, or obtain permission from the owner of the property where Equipment will be delivered or removed or Services performed, and assist Seller personnel as necessary for them to access to the premises, remove or install Equipment at the premises and otherwise perform Seller obligations under the Agreement.  Unless Buyer is Seller’s business customer and Seller has specifically agreed in writing that Buyer can resell products, Buyer represents and warrants that Buyer is buying Equipment from Seller for its own business or residential use, and not for resale.

8.  Buyer Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller, its affiliated entities, and all of their investors, members, managers, officers, employees, agents, representatives, successors, heirs, and assigns (collectively the "indemnitees"), from and against, any and all claims, proceedings, losses, demands, actions (and all expenses associated therewith asserted against, suffered, or incurred by indemnitees) with respect to Buyer’s or its employees’, agents’ or representatives’ (collectively the “indemnitors”) (i) failure to comply with any obligation imposed on any of them under the Agreement; (ii) violation of applicable law, ordinance, regulation, or rule by any indemnitors; and (iii) causation of death or injury to any persons or damage to property arising out of or related to indemnitor’s use of the Equipment or acts or omissions of indemnitors related to the Agreement.  Any and all costs, expenses, and attorney's fees which Seller may incur in the furtherance of the disposal or defense of any claim or action to be indemnified by the indemnitees as set forth in this Section, or in the enforcement of the indemnitees’ indemnification obligations under this Section, shall be solely the responsibility of and be reimbursed by Buyer. At Buyer’s sole cost and expense, Seller shall cooperate with and assist Buyer in the defense of any claim or action included within indemnitees’ indemnification obligations.          

9. Termination

9.01. Termination for Breach. Either party may terminate the Agreement at any time in the event of a breach by the other party of a material covenant, commitment or obligation under the Agreement that remains uncured: (i) in the event of a monetary breach, ten (10) calendar days following non-payment; (ii) in the event of a non-monetary breach, or the negligence or misconduct of the other party, after thirty (30) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either party. Termination shall be in addition to any other remedies that may be available to the non-breaching party.

9.02. Termination for Bankruptcy, Insolvency or Financial Insecurity. Seller may terminate the Agreement immediately at its option upon written notice if Buyer: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. The Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that Buyer is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of the Agreement pursuant to 11 U.S.C. §365.             

9.03. Obligations upon Termination. Termination of the Agreement for any reason shall not discharge either party's liability for obligations incurred and amounts unpaid at the time of such termination. Buyer shall be responsible for the payment of any Equipment that was ordered or Services that were provided prior to termination.   Seller shall not be required to deliver any Equipment after the date of termination unless the Equipment has been paid in full.

10. Force Majeure. Seller shall not be liable hereunder for any failure or delay in the performance of its obligations under the Agreement, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemic, epidemic, or other similar or different occurrences beyond the reasonable control of the Seller, for so long as such force majeure event is in effect. Seller shall endeavor to provide Buyer with notice of the occurrence of such an event within five (5) business days of its occurrence.        

11. Dispute Resolution; Governing Law and Venue. If any dispute arises between the parties regarding this Agreement, the parties agree to negotiate in good faith to resolve such dispute in a timely fashion.  The parties may, but are not required to,  submit the dispute to a single mediator, jointly selected by the parties, to assist with timely resolution of the dispute. The Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without giving effect to the principles of conflicts of law of such state. The UN Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. The parties hereby agree that if the matter is not submitted to mediation, or is not resolved by the parties pursuant to mediation, any action arising out of the Agreement will be brought solely in any state or federal court located in or near Colorado Springs, Colorado. Both parties hereby submit to the exclusive jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THE AGREEMENT.

12. Attorney’s Fees. If either party incurs any legal fees associated with the enforcement of the Agreement or any rights under the Agreement, the prevailing party as determined by the court in such action shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other party.     

13. Collection Costs; Salvage/Disposal Costs. If Seller incurs any costs, expenses, or fees, including reasonable attorneys’ fees and professional services fees, in connection with the collection or payment of any amounts due Seller from Buyer under the Agreement, or to dispose of Equipment that is not picked up by Buyer as required by the Agreement, Buyer agrees to reimburse Seller for all such costs, expenses and fees subject to interest fees at the rate of  18% per annum.   

14. Assignment; No Third-Party Beneficiaries. Neither party may assign the Agreement, either in whole or part, without the express written consent of the other party. Notwithstanding the foregoing, Seller may assign the Agreement to any affiliated company or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of the Seller’s assets, without the consent of the Buyer. Any assignment without required consent shall be null and void. Notwithstanding the foregoing, the Agreement shall be binding upon and inure to the benefit of the successors, assigns and legal representatives of the parties. There are no third-party beneficiaries to the Agreement.             

15. Relationship of the Parties. Nothing in the Agreement, and no course of dealing between the parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the parties or between one party and the other party’s employees or agents. Each of the parties is an independent contractor and neither Seller nor Buyer has the authority to bind or contract any obligation in the name of or on account of the other party or otherwise act on behalf of the other. Each party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers compensation, and all other employment benefits.

16. Severability. In the event any provision or portion of the Agreement shall be held to be unenforceable, invalid or illegal under applicable law or by a court of competent jurisdiction, the remaining provisions or portions shall remain in full force and effect.

17. Rights Cumulative. The rights and remedies of the parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.               

18. Survival. Each term and provision of the Agreement that should by its sense and context survive any termination or expiration of the Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either party to the Agreement.               

19. Notices. All notices or other communications required under the Agreement shall be deemed effective when received and made in writing by (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, (iv) overnight mail, or (v) electronic mail, fax or other electronic transmission with proof of receipt.               

20. Waiver. No waiver of any term or right in the Agreement shall be effective unless in writing, signed by the waiving party. The failure of either party to enforce any provision of the Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of the Agreement thereafter.

21. Entire Agreement; Modification. The Agreement, and all documents incorporated by reference into the Agreement, is the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreement or communications between the parties, whether written, oral, electronic or otherwise. No change, modification, amendment, or addition of or to the Agreement or any part thereof shall be valid unless in writing and signed by the parties.