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1. Terms and Conditions
These terms and conditions apply to any sales from Interlake to Customer and any quotation or proposal by Interlake. Any different or additional terms in any documents from Customer are objected to and rejected, are deemed to materially alter these terms, and will not become part of any contract. If Interlake provides installation services, Interlake's separate Standard Terms and Conditions for Installation are incorporated herein.
2. Purchase Price and Payment Terms
Payment for all material and goods purchased (the "Equipment"), as well as for freight and any installation or other services purchased, is due 30 days after date of Interlake's invoice, or early if otherwise agreed. Interlake may submit periodic invoices for progress payments for the value of services performed or purchased and materials incorporated in the work or stored on site, less previous invoice amounts paid. Any down payment will be applied to final invoice. Interest payable on late payments will be one and one-half percent per month (or the maximum legal rate if less).
3. Taxes
Customer will be solely responsible for payment directly to taxing authority or reimbursement to Interlake, when paid by Interlake, of all sales, use or similar taxes, and any duties or permits or any other fees imposed upon this transaction by any level of government whether due at the time of sale or later (excluding Interlake’s income taxes).
4. Delivery; Force Majeure
a. All prices are F.O.B. point of shipment, and Customer will pay all freight expense. Quoted lead times are subject to change at any time until order is placed by Customer and accepted by Interlake. Shipping, delivery and installation dates stated are approximate. If shipment is postponed at Customer's request, payment will be made by Customer as though shipment had been made on schedule. If Customer delays Interlake's work or shipment, Customer will pay any expenses incurred by Interlake due to such delay, including but not limited to costs of storing and maintaining all materials purchased hereunder (the "Equipment") and incidental labor costs. Schedule will be deferred accordingly.
b. Interlake will not be liable for any delay in performing or for partial or complete failure to perform hereunder if such delay or failure is due to fire, flood, explosion, Act of God, force majeure, accident, war, intervention of governmental authorities, strikes, labor disputes, material shortages, transportation delays, any act or omission of Customer, its agents or employees or any party retained by, through or under any of them, or any other cause similar or dissimilar which is beyond Interlake's reasonable control.
5. Change Orders
a. Customer and Interlake may agree at any time to make additions, deletions or revisions in the Equipment or services to be provided, and Interlake shall not be obligated to make any such change without the formal execution of a written change order signed on behalf of Interlake by the Site Engineer or authorized representative. If Interlake commences work to implement a change order at Customer's request before price and time adjustments are agreed to in writing, it shall be entitled to fair compensation including profit and appropriate extensions to schedule.
b. If changes in the work, conditions not reasonably foreseeable, force majeure events described above, or any act or omission of Customer, its agents or employees or any party retained by, through or under any of them, cause an increase in the cost or time required for performance, the Purchase Price and schedule shall be equitably adjusted.
6. Acceptance
The Equipment will be deemed accepted by Customer upon the earlier of (i) written acceptance, (ii) if Interlake is not installing the Equipment, 15 days after delivery, if Customer shall not have notified Interlake in writing of deficiency in the Equipment, or (iii) if Interlake is installing the Equipment, 15 days after Interlake's notice that it has substantially completed installation, or 15 days after delivery if installation is delayed by causes other than Interlake, or (iv) commencement of beneficial use of the Equipment. Upon such acceptance, payment of any unpaid balance of the purchase price will be due. Payment in full shall also constitute acceptance and waiver of all claims other than claims relating to warranty or liens.
7. Confidential Engineering Data
a. The drawings and specifications of any Interlake proposal or any quotation are confidential engineering data, and represent Interlake's investment in engineering skill and development and remain the property of Interlake. All confidential information will not be disclosed or used by Customer or its successors or assigns in any manner other than in using the work contemplated by this Agreement.
b. All specifications and dimensions of proposal drawings are approximate, and are subject to changes during detailed engineering. Weights are approximate. Purchased materials and components referred to by trade-names or by manufacturer may be interchanged at the option of Interlake with other materials and components of at least equal quality and value. After an order from Customer is received by Interlake, Interlake will submit layout drawings, if required, to Customer who will check and verify them in the field in writing with reasonable promptness.
c. All molds, dies, tools, special fixtures, jigs, patterns, plates and models used by Interlake in manufacture or installation are and remain the property of Interlake.
8. Software License
a. Interlake hereby licenses Customer to use any computer software programs owned by Interlake and either included in the Equipment or separately provided by Interlake to Customer (the "Software"), in accordance with the terms of the license set forth in this section. The copyright, title and all other rights in the Software remain with Interlake. Customer may use the Software only on that number of computers or central processing units which are included in the Equipment, and may not use the Software on additional computers or CPU's without purchase of a further written license from Interlake. Customer may transfer this license only if (i) the Software is transferred together with a transfer of substantially all of the Equipment to the same transferee, (ii) Customer transfers all of its rights under this license to the transferee, (iii) Customer ceases all use of the Software and erases or destroys all of Customer's copies (including hard disk copies) and (iv) the transferee agrees in writing to all terms of this license. Customer agrees not to copy, translate, reverse, engineer, decompile or disassemble the Software or any source code therefor disclosed to Customer; rent, lease, assign or transfer the Software except as permitted above; modify the Software or merge all or any part of the Software in another program; nor to permit any person or entity to obtain access to the Software or any source code therefor except as required for Customer's own internal use. This license will terminate upon 15 days notice of breach of the terms hereof.
b. Any third party software included with the Equipment or provided to Customer by Interlake is licensed to Customer by the owner thereof under the terms of the license agreement provided with such software. All warranties, remedies, and maintenance for such third party software is provided by such owner.
9. Warranty
a. Warranty periods. Warranty period shall run from the earlier of (i) written acceptance, (ii) if Interlake is not installing the Equipment, 15 days after delivery, (iii) if Interlake is installing the Equipment, 15 days after Interlake's notice that it has substantially completed installation (or after delivery if installation is delayed by causes other than Interlake), or (iv) commencement of beneficial use of the Equipment. Interlake warrants that from the start of warranty period and for the following 12 months, the storage rack Equipment will be free from defects in workmanship and materials if properly used and maintained by Customer.
b. Conveyor and pick-to-light. Subsections b and c hereof (and the section entitled "Software License" above) apply only if the Equipment includes conveyors or Software. Interlake warrants that start of the warranty period stated above, and for the following 12 months or 2,080 operating hours, whichever occurs first, the following items (if included in the Equipment) will be free from defects in workmanship and materials if properly used and maintained by Customer:
- motors and gear assemblies - relays
- motor speed controller (except - contractors
contacts and switches) - fuse blocks
- major electronic control assemblies - lamp assemblies
- motor driven pumps and valves - wiring
- frames - fans
- bearings - limit switches
- end rollers and pulleys - sensors
- drive assemblies - solenoid valves
- air cylinders - wands
- panels and doors - meters and gauges
- motor starters - drive chain
- pick-to-light devices
The warranty does not apply to computer hardware, bulbs, lenses, fuses, any parts which through normal use require replacement during the warranty period, or any other parts not listed above.
c. Computer software. Interlake warrants that from the start of the warranty period stated above, and for the following 12 months, Interlake's computer software programs (if included in the Equipment) shall function substantially in accordance with the related user documentation.
d. The warranty will not apply to the Equipment if, in the reasonable judgment of Interlake, it is altered or replaced by non-Interlake personnel, combined with non-Interlake equipment, or subjected to misuse (such as, but not limited to, overloading, exposure to corrosive or abrasive substances or abnormal dampness), neglect, accident, inadequate maintenance, or a use not in accord with instructions furnished by Interlake, and the warranty will not apply to any part of the Equipment which has been furnished by Customer. (The warranty applicable to components purchased by Interlake will be limited to the warranty given by Interlake's supplier in each instance, and will not exceed the warranty stated herein.) It is particularly important that the following parts not be disassembled or tampered with:
- printed circuit boards or - drive units
processor modules - motor and gear assemblies
- motor controllers - relays and output boards
- wands - sensor or limit switches
e. During the applicable warranty period, Interlake will repair or replace any defective parts covered under the warranty, only if Interlake is given written notice specifying the particular defect within 30 days after the date that such defects were discovered or should have been discovered (and in any event not more than 30 days after the last day of the warranty period stated above), and Interlake's examination confirms the claim to its satisfaction. Warranty service is provided only on a return basis to Interlake's plant. Return freight to Interlake must be paid by Customer; delivery of repair or replacement parts will be paid by Interlake. No Equipment or component may be returned to Interlake without prior return authorization, and the return package must prominently bear an RMA# provided by Interlake, or the return may be refused and returned by Interlake . All cost of removal and installation or reinstallation of parts, whether or not defective, including installation of replacement parts furnished by Interlake, will be paid for by Customer. Repaired or replaced parts are individually warranted only for the balance of the agreed upon warranty.
f. This warranty does not cover preventive maintenance or inspection; these services may be provided as part of a separate maintenance contract or on a fee basis.
g. Interlake reserves the right to make changes in its own equipment and designs at any time, without incurring any obligation to make the same or similar changes to Equipment sold to Customer.
10. DISCLAIMER OF OTHER WARRANTIES.
THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MUST GIVE WRITTEN NOTICE TO INTERLAKE OF ANY DEFECTS WITHIN 30 DAYS FROM THE DATE THAT SUCH DEFECTS WERE DISCOVERED OR SHOULD HAVE BEEN DISCOVERED AND IN ANY EVENT WITHIN 30 DAYS AFTER THE LAST DAY OF THE APPLICABLE WARRANTY PERIOD. FAILURE BY CUSTOMER TO GIVE SUCH WRITTEN NOTICE TO INTERLAKE OF DEFECTS WILL CONSTITUTE A WAIVER BY CUSTOMER OF ALL CLAIMS OR WARRANTY REMEDIES FOR SAID DEFECTS.
11. LIMITATION OF LIABILITY
CUSTOMER AGREES THAT IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF LEGAL ACTION OR THE THEORY OF RECOVERY, WILL INTERLAKE OR ITS SUBCONTRACTORS OR AFFILIATES BE LIABLE FOR (I) CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE EQUIPMENT OR ANY OTHER PROPERTY, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMER'S CLIENTS FOR SUCH DAMAGES, NOR (II) ANY LOSSES OR DAMAGES UNDER ANY CLAIM OF ANY KIND, IN EXCESS OF THE PURCHASE PRICE ACTUALLY PAID TO INTERLAKE FOR THE EQUIPMENT WHICH GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY WILL TERMINATE THREE (3) YEARS AFTER SUBSTANTIAL COMPLETION OF WORK UNDER THIS AGREEMENT.
12. Risk of Loss; Insurance Coverage
If the Equipment is to be installed by Interlake, risk of loss passes to Customer when the Equipment is delivered to the site; otherwise, risk of loss passes to Customer upon delivery of any portion of the Equipment to a carrier for shipment. Customer agrees to maintain insurance, such as all risk builders insurance, covering equipment on site against loss by fire, theft or other hazard at least equal to the purchase price of the Equipment (and other work and materials on site) until the purchase price is completely paid, and to provide Interlake a certificate of insurance.
13. Compliance With Government or Industry Codes
As government and industry codes and standards may apply differently depending on Customer’s use of the Equipment, compliance with government and industry codes and standards is Customer’s responsibility.
14. Equal Opportunity
Interlake does not discriminate against any employee or applicant for employment because of race, religion, sex or national origin. Interlake complies with applicable legal requirements to hire veterans and the handicapped. Interlake complies with the Fair Labor Standards Act.
15. Liens; Security Interest
a. Interlake will protect Customer against any lien asserted against Customer's property for materials or services furnished by others under contract with Interlake, provided that Customer makes the payments required under this Contract and provides Interlake timely notice of lien claims.
b. Customer grants Interlake a security interest in any and all Equipment purchased hereunder, until the purchase price is fully paid, and upon request will sign a financing statement evidencing the security interest.
16. Termination; Cancellation
a. If Customer or Interlake fails to comply or becomes disabled from complying with the terms of this Agreement in any material respect and such lack of compliance is not corrected within five business days after written request, then Interlake and Customer will meet to negotiate regarding modification of this Agreement. If no modification is agreed upon within three weeks after the notice referred to is received, or after such longer period as the parties may agree upon, then the party in compliance herewith and under no disability may terminate this Agreement upon notice.
b. If Customer cancels or repudiates this Agreement in whole or in part except as permitted hereunder, Interlake shall, in addition to those remedies provided under applicable law including but not limited to the Uniform Commercial Code, be entitled to recover from Customer (1) the portion of the purchase price chargeable for work completed in manufacturing or installing the Equipment as of the date of termination (2) any direct liabilities, obligations, damages, and/or claims incurred by Interlake in
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use of the Software and erases or destroys all of Customer's copies (including hard disk copies) and (iv) the transferee agrees in writing to all terms of this license. Customer agrees not to copy, translate, reverse, engineer, decompile or disassemble the Software or any source code therefor disclosed to Customer; rent, lease, assign or transfer the Software except as permitted above; modify the Software or merge all or any part of the Software in another program; nor to permit any person or entity to obtain access to the Software or any source code therefor except as required for Customer's own internal use. This license will terminate upon 15 days notice of breach of the terms hereof.
b. Any third party software included with the Equipment or provided to Customer by Interlake is licensed to Customer by the owner thereof under the terms of the license agreement provided with such software. All warranties, remedies, and maintenance for such third party software is provided by such owner.
9. Warranty
a. Warranty periods. Warranty period shall run from the earlier of (i) written acceptance, (ii) if Interlake is not installing the Equipment, 15 days after delivery, (iii) if Interlake is installing the Equipment, 15 days after Interlake's notice that it has substantially completed installation (or after delivery if installation is delayed by causes other than Interlake), or (iv) commencement of beneficial use of the Equipment. Interlake warrants that from the start of warranty period and for the following 12 months, the storage rack Equipment will be free from defects in workmanship and materials if properly used and maintained by Customer.
b. Conveyor and pick-to-light. Subsections b and c hereof (and the section entitled "Software License" above) apply only if the Equipment includes conveyors or Software. Interlake warrants that start of the warranty period stated above, and for the following 12 months or 2,080 operating hours, whichever occurs first, the following items (if included in the Equipment) will be free from defects in workmanship and materials if properly used and maintained by Customer:
- motors and gear assemblies - relays
- motor speed controller (except - contractors
contacts and switches) - fuse blocks
- major electronic control assemblies - lamp assemblies
- motor driven pumps and valves - wiring
- frames - fans
- bearings - limit switches
- end rollers and pulleys - sensors
- drive assemblies - solenoid valves
- air cylinders - wands
- panels and doors - meters and gauges
- motor starters - drive chain
- pick-to-light devices
The warranty does not apply to computer hardware, bulbs, lenses, fuses, any parts which through normal use require replacement during the warranty period, or any other parts not listed above.
c. Computer software. Interlake warrants that from the start of the warranty period stated above, and for the following 12 months, Interlake's computer software programs (if included in the Equipment) shall function substantially in accordance with the related user documentation.
d. The warranty will not apply to the Equipment if, in the reasonable judgment of Interlake, it is altered or replaced by non-Interlake personnel, combined with non-Interlake equipment, or subjected to misuse (such as, but not limited to, overloading, exposure to corrosive or abrasive substances or abnormal dampness), neglect, accident, inadequate maintenance, or a use not in accord with instructions furnished by Interlake, and the warranty will not apply to any part of the Equipment which has been furnished by Customer. (The warranty applicable to components purchased by Interlake will be limited to the warranty given by Interlake's supplier in each instance, and will not exceed the warranty stated herein.) It is particularly important that the following parts not be disassembled or tampered with:
- printed circuit boards or - drive units
processor modules - motor and gear assemblies
- motor controllers - relays and output boards
- wands - sensor or limit switches
e. During the applicable warranty period, Interlake will repair or replace any defective parts covered under the warranty, only if Interlake is given written notice specifying the particular defect within 30 days after the date that such defects were discovered or should have been discovered (and in any event not more than 30 days after the last day of the warranty period stated above), and Interlake's examination confirms the claim to its satisfaction. Warranty service is provided only on a return basis to Interlake's plant. Return freight to Interlake must be paid by Customer; delivery of repair or replacement parts will be paid by Interlake. No Equipment or component may be returned to Interlake without prior return authorization, and the return package must prominently bear an RMA# provided by Interlake, or the return may be refused and returned by Interlake . All cost of removal and installation or reinstallation of parts, whether or not defective, including installation of replacement parts furnished by Interlake, will be paid for by Customer. Repaired or replaced parts are individually warranted only for the balance of the agreed upon warranty.
f. This warranty does not cover preventive maintenance or inspection; these services may be provided as part of a separate maintenance contract or on a fee basis.
g. Interlake reserves the right to make changes in its own equipment and designs at any time, without incurring any obligation to make the same or similar changes to Equipment sold to Customer.
10. DISCLAIMER OF OTHER WARRANTIES.
THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER MUST GIVE WRITTEN NOTICE TO INTERLAKE OF ANY DEFECTS WITHIN 30 DAYS FROM THE DATE THAT SUCH DEFECTS WERE DISCOVERED OR SHOULD HAVE BEEN DISCOVERED AND IN ANY EVENT WITHIN 30 DAYS AFTER THE LAST DAY OF THE APPLICABLE WARRANTY PERIOD. FAILURE BY CUSTOMER TO GIVE SUCH WRITTEN NOTICE TO INTERLAKE OF DEFECTS WILL CONSTITUTE A WAIVER BY CUSTOMER OF ALL CLAIMS OR WARRANTY REMEDIES FOR SAID DEFECTS.
11. LIMITATION OF LIABILITY
CUSTOMER AGREES THAT IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF LEGAL ACTION OR THE THEORY OF RECOVERY, WILL INTERLAKE OR ITS SUBCONTRACTORS OR AFFILIATES BE LIABLE FOR (I) CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE EQUIPMENT OR ANY OTHER PROPERTY, COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS OR CLAIMS OF CUSTOMER'S CLIENTS FOR SUCH DAMAGES, NOR (II) ANY LOSSES OR DAMAGES UNDER ANY CLAIM OF ANY KIND, IN EXCESS OF THE PURCHASE PRICE ACTUALLY PAID TO INTERLAKE FOR THE EQUIPMENT WHICH GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY WILL TERMINATE THREE (3) YEARS AFTER SUBSTANTIAL COMPLETION OF WORK UNDER THIS AGREEMENT.
12. Risk of Loss; Insurance Coverage
If the Equipment is to be installed by Interlake, risk of loss passes to Customer when the Equipment is delivered to the site; otherwise, risk of loss passes to Customer upon delivery of any portion of the Equipment to a carrier for shipment. Customer agrees to maintain insurance, such as all risk builders insurance, covering equipment on site against loss by fire, theft or other hazard at least equal to the purchase price of the Equipment (and other work and materials on site) until the purchase price is completely paid, and to provide Interlake a certificate of insurance.
13. Compliance With Government or Industry Codes
As government and industry codes and standards may apply differently depending on Customer’s use of the Equipment, compliance with government and industry codes and standards is Customer’s responsibility.
14. Equal Opportunity
Interlake does not discriminate against any employee or applicant for employment because of race, religion, sex or national origin. Interlake complies with applicable legal requirements to hire veterans and the handicapped. Interlake complies with the Fair Labor Standards Act.
15. Liens; Security Interest
a. Interlake will protect Customer against any lien asserted against Customer's property for materials or services furnished by others under contract with Interlake, provided that Customer makes the payments required under this Contract and provides Interlake timely notice of lien claims.
b. Customer grants Interlake a security interest in any and all Equipment purchased hereunder, until the purchase price is fully paid, and upon request will sign a financing statement evidencing the security interest.
16. Termination; Cancellation
a. If Customer or Interlake fails to comply or becomes disabled from complying with the terms of this Agreement in any material respect and such lack of compliance is not corrected within five business days after written request, then Interlake and Customer will meet to negotiate regarding modification of this Agreement. If no modification is agreed upon within three weeks after the notice referred to is received, or after such longer period as the parties may agree upon, then the party in compliance herewith and under no disability may terminate this Agreement upon notice.
b. If Customer cancels or repudiates this Agreement in whole or in part except as permitted hereunder, Interlake shall, in addition to those remedies provided under applicable law including but not limited to the Uniform Commercial Code, be entitled to recover from Customer (1) the portion of the purchase price chargeable for work completed in manufacturing or installing the Equipment as of the date of termination (2) any direct liabilities, obligations, damages, and/or claims incurred by Interlake in performing under this Agreement and (3) gross profit on the terminated portion of the order, equal to not less than fifteen percent (15%) of the unpaid portion of the purchase price.
c. Nothing herein shall be construed to waive, limit or otherwise deprive Interlake of any remedy available at law or in equity for Customer's cancellation or repudiation of this Agreement.
d. Customer shall not have the right to reject specified, approved and delivered equipment unless that equipment is proven defective.
17. Costs of Collection; Indemnification
a. In the event Customer shall default in its obligations hereunder, Customer shall be liable for Interlake’s costs of collection, including reasonable attorneys’ fees, whether or not suit is actually filed.
b. Certain liabilities are allocated to Customer as follows. Customer agrees to indemnify, defend and hold harmless Interlake, its affiliates, successors and assigns from and against any liabilities, claims, demands, damages, losses and expenses (including attorneys fees) arising from any act or omission of Customer or its employees or agents or any party under Customer's direction or anyone acting on behalf of Customer; this includes (without limitation) personal injury or death to any person (whether an employee of Customer or any other person) and damage to any property. Interlake does not indemnify Customer.
18. General; Assignment; Entire Agreement; Waiver; Interpretation.
a. Customer may not assign in whole or in part without written consent of Interlake. Interlake may assign its rights and/or obligations hereunder.
b. Customer acknowledges that these terms and conditions, and Interlake's proposal if any, constitute the entire agreement between Interlake and Customer and supersede any prior agreements and representations. Customer acknowledges and agrees that any prior or contemporaneous promises, agreements, or representations, whether oral or written, or created through custom, usage, or course of dealing are also superseded by these terms and conditions. No waiver of any of these terms and conditions will be valid unless in writing and signed by an authorized representative of Interlake. Waiver of any breach or default will not be deemed a waiver of any subsequent breach or default. Delivery of these terms and conditions constitutes either an offer or an acceptance by Interlake. If these terms and conditions constitute an offer by Interlake, Customer's acceptance shall be limited to these terms and conditions. If Customer has made an offer and if these terms contain different or additional terms or conditions than the terms or conditions of Customer's offer, then any acceptance of Customer's offer by Interlake is expressly made conditional on assent by Customer to the additional or different terms or conditions hereof. Customer shall be bound by these terms and conditions. Any terms and conditions which are not enforceable are deemed severed only to the extent of such non-enforceability.
19. Notice
Notice under this Agreement will be deemed given (i) when sent by fax with electronic confirmation of receipt, or (ii) one business day after being sent by reliable overnight courier, or (iii) three business days after being placed in a postage prepaid envelope, registered or certified mail, and deposited with the U.S. Post office, properly addressed.
20. Governing Law and Arbitration
a. This Agreement and any dispute related directly or indirectly to this Agreement ("Dispute") will be governed by the law of the jurisdiction in which the Equipment is to be installed if the Equipment is to be installed by Interlake, and otherwise by the law of the State of Illinois.
b. If any Dispute is not resolved in the ordinary course of business, the Dispute will be resolved exclusively as provided in this section, and either party may by written notice demand dispute resolution. The notice, and a response required within three weeks, shall state each party's position and the reasons supporting it.
c. Senior executives of all parties will meet at least once within six weeks after the notice. Upon request of either party, the negotiation shall be presided over by a third-party mediator pursuant to the Center for Public Resources Institute for Dispute Resolution ("CPR") Model Procedure for Mediation of Business Disputes, and the neutral mediator will be from the CPR Panel of neutrals (or successor). The parties will attempt to resolve in good faith.
d. If the executives are unable to resolve the Dispute within nine weeks after the notice of Dispute, arbitration may be commenced by either party. The then-current CPR Non-Administered Arbitration Rules will govern, there will be one arbitrator, and the place of arbitration will be metropolitan Chicago. Each party is limited to two days of evidence and three live witnesses. The arbitrator's decision will be final and binding. Each party must bear its own costs of the dispute resolution and the parties must bear equally the costs of any arbitrator or mediator.
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Last updated April 12, 2001 |