TERMS AND CONDITIONS

These Terms and Conditions, together with the purchase order (“Order”) are hereinafter collectively referred to as this “Agreement” and shall constitute the entire agreement between the customer (“Customer”) identified in the Order and Durawrx (“Durawrx”). In the event of any inconsistency, the terms and conditions of this Agreement shall prevail.

1. SCOPE OF SERVICES; PERFORMANCE OF SERVICES. Durawrx shall supply part(s) and/or component(s) and/or engine(s) and/or generator set(s) (“Goods”).
2. CUSTOMER OBLIGATIONS. Customer is responsible for operating and maintaining the Equipment in accordance with the owner’s manual for the Equipment.
3. INVOICING AND PAYMENT. Payments shall be made when the Order is placed. In the event Durawrx issues credit to the Customer, and payment is not received when due, in addition to any rights Durawrx may have at law, Durawrx may charge Customer eighteen percent (18%) interest annually on late payments, or the maximum amount allowed by law. Customer agrees to pay all Durawrx’ costs and expenses (including all reasonable attorneys’ fees) related to Durawrx’ enforcement and collection of unpaid invoices, or any other enforcement of this Agreement by Durawrx.
4. TAXES; EXEMPTIONS. The cost of the Goods includes all applicable local, state, or federal sales and/or use or similar taxes which Durawrx is required by applicable laws to collect from Customer under this Agreement. Customer must provide a valid tax exemption certificate or direct payment certificate prior to shipment of the Goods or performance of the Services or such taxes will be included in the cost of the Goods.
5. DELIVERY; TITLE AND RISK OF LOSS. Goods supplied under this Agreement shall be delivered FOB shipping point, freight prepaid. If agreed, any charges for third party freight are subject to adjustment to reflect any change in price at time of shipment. Packaging method, shipping documents and manner, route and carrier and delivery shall be as Durawrx deems appropriate. Title and risk of loss for any Goods sold under this Agreement shall pass to Customer upon delivery of Goods by Durawrx to freight carrier.
6. DELAYS. Any delivery or shipping dates indicated in this Agreement are estimated and not guaranteed. Durawrx shall not be liable to Customer or any third party for any loss, damage, or expense suffered by Customer or third party due to any delay in delivery including any delays that result directly or indirectly from acts of Customer or causes beyond Durawrx control, including but not limited to acts of God, accidents, fire, explosions, flood, unusual weather conditions, acts of government authority, or labor disputes.
7. LIMITED WARRANTIES.
   a. Goods purchased or supplied under this Agreement are governed by the express written manufacturers’ warranty which is two (2) years from the date of purchase, 40,000 miles or 1200 hours, whichever comes first. Customer must request a return label from Durawrx, and return the Goods using the return label. Once inspected by Durawrx and a warranty claim is approved, Durawrx shall issue a credit or refund to Customer. No other warranty for Goods supplied under this Agreement is provided.b. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES PROVIDED BY DURAWRX TO THE CUSTOMER UNDER THIS AGREEMENT. EXCEPT AS SET OUT IN THE WARRANTY AND THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, DURAWRX EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY STATUTORY OR COMMON LAW IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PURPOSE OR MERCHANTABILITY.
8. INDEMNIFICATION. Customer shall indemnify, defend and hold harmless Durawrx from and against any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, brought against or incurred by Durawrx related to or arising out of this Agreement or the Goods supplied under this Agreement (collectively, the “Claims”), where such Claims were
   caused or contributed, in whole or in part, by the acts, omissions, fault or negligence of the Customer.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT, IN NO EVENT SHALL DURAWRX, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION DOWNTIME, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, LOSS OF OPPORTUNITY, DAMAGE TO GOODWILL, ENHANCED DAMAGES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY, AND/OR DAMAGES CAUSED BY DELAY) IN ANY WAY RELATED TO OR ARISING FROM DURAWRX’ SUPPLY OF GOODS UNDER THIS AGREEMENT. IN NO EVENT SHALL DURAWRX’ LIABILITY TO CUSTOMER OR ANY THIRD PARTY CLAIMING DIRECTLY THROUGH CUSTOMER OR ON CUSTOMER’S BEHALF UNDER THIS AGREEMENT EXCEED THE TOTAL COST OF GOODS AND SERVICES SUPPLIED BY DURAWRX UNDER THIS AGREEMENT GIVING RISE TO THE CLAIM. BY ACCEPTANCE OF THIS AGREEMENT, CUSTOMER ACKNOWLEDGES CUSTOMER’S SOLE REMEDY AGAINST DURAWRX FOR ANY LOSS SHALL BE THE REMEDY PROVIDED HEREIN.
10. GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and applicable federal laws of the United States, without regard to conflict of law principles. Any legal proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Lee County, Florida, and each party irrevocably submits
    to the jurisdiction and venue of such courts.
11. ASSIGNMENT. This Agreement is binding on the parties and their successors and assigns. Customer shall not assign this Agreement without the prior written consent of Durawrx.
12. CANCELLATION. Orders placed with and accepted by Durawrx may not be cancelled except with Durawrx prior written consent.
13. REFUNDS/CREDITS. Goods ordered and delivered by Durawrx under this Agreement are not returnable unless agreed to by Durawrx. Equipment must be in original and unopened packaging. Durawrx may, at its sole discretion, agree to accept Goods for return and provide credit where Goods are in new and saleable condition and presented with a copy of the original invoice. Credits for returns will be subject to up to a 15% handling/restocking charge and are limited to eligible items purchased from Durawrx.
14. INTELLECTUAL PROPERTY. Nothing in this Agreement shall be deemed to have given Customer a license or any other rights to use any of the intellectual property rights of Durawrx.
15. COMPLIANCE WITH LAWS. Customer shall comply with all laws applicable to its activities under this Agreement, including without limitation, any and all applicable national, provincial, and local export, anti-bribery, environmental, health, and safety laws and regulations in effect. Customer acknowledges that the Goods, and any related technology that are sold or otherwise provided hereunder may be subject to export and other trade controls restricting the sale, export, re-export and/or transfer, directly or indirectly, of such Goods or technology to certain countries or parties, including, but not limited to, licensing requirements under applicable laws and regulations of the United States, the United Kingdom and other jurisdictions. It is the intention of Durawrx to comply with these laws, rules, and regulations. Any other provision of this Agreement to the contrary notwithstanding, Customer shall comply with all such applicable laws relating to the cross-border movement of goods or technology, and all related orders in effect from time to time, and equivalent measures. Customer shall accept full responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify, and hold Durawrx harmless from and against any and all fines, penalties, claim, damages, liabilities, judgments, costs, fees, and expenses incurred by Durawrx or its affiliates as a result of Customer’s breach.
16. CONFIDENTIALITY. Each party shall keep confidential any information received from the other that is not generally known to the public and at the time of disclosure, would reasonably be understood by the receiving party to be proprietary or confidential, whether disclosed in oral, written, visual, electronic, or other form, and which the receiving party (or agents) learns in connection with this Agreement including, but not limited to: (a) business plans, strategies, sales, projects and analyses; (b)financial information, pricing, and fee structures; (c) business processes, methods, and models; (d) employee and supplier information; (e) specifications; and (f) the terms and conditions of this Agreement. Each party shall take necessary steps to ensure compliance with this provision.
17. MISCELLANEOUS. Any provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms hereof. These terms are exclusive and constitute entire agreement of the parties. Acceptance of this Agreement is expressly conditioned on Customer’s assent to all such terms and conditions. Neither party has relied on any statement, representation, agreement, understanding, or promise made by the other except as expressly set out in this Agreement.