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EXHIBIT 10.86
XXXXXXXXX-XXXX DISTRIBUTOR SELLING AGREEMENT
AGREEMENT, is made this 1st day of July, 1998, by and between
XXXXXXXXX-XXXX COMPANY, a New Jersey corporation, through its Construction &
Mining Group, having offices at 0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx, XX
00000-0000 (hereinafter called "Xxxxxxxxx-Xxxx"), and Crescent Machinery
Company, a Corporation, organized under the laws of the State of Texas, having
offices at 0000 Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000 (hereinafter called
"Distributor").
WHEREAS, the Construction & Mining group of I-R is engaged in the
manufacture, distribution and sale of various items of equipment, and
WHEREAS, Xxxxxxxxx-Xxxx wishes to enter into a non-exclusive agreement
for the promotion, sale and servicing of Equipment, as defined herein, within
the Area of Primary Sales Responsibility, as defined herein, and
WHEREAS, Distributor wishes to act as a non-exclusive distributor for
Xxxxxxxxx-Xxxx for the promotion, sale and servicing of Equipment within the
Area of Primary Sales Responsibility, in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE
A. The term "Equipment" as used in this Agreement refers to new
equipment or parts and/or accessories manufactured or sold by Xxxxxxxxx-Xxxx as
specifically identified within the Discount Schedule comprising Attachment 1 of
this Agreement. Xxxxxxxxx-Xxxx may, with or without advance notice and without
liability to the Distributor, (1) withdraw or supersede any one or more of the
items of Equipment, and/or (2) change prices, discounts, and terms and
conditions applicable to the purchase of Equipment. Equipment not listed in
Attachment 1 is not available for purchase by the Distributor under this
Agreement.
X. Xxxxxxxxx-Xxxx hereby extends to the Distributor the non-exclusive
rights to stock, sell and service Equipment within the following "Area of
Primary Sales Responsibility":
State of Texas - Counties of Xxxxxxxx, Bastrop, Bell, Blanco, Bosque,
Brazos, Brown, Burleson, Burnet, Xxxxxxxx, Xxxxxx, Comanche, Cooke, Coryell,
Dallas, Denton, Eastland, Ellis, Erath, Fannin, Fayette, Freestone, Gillespie,
Grayson, Hamilton, Hays, Henderson, Hill, Hood, Xxxx, Xxxx, Johnson, Kaufman,
Lampasas, Xxx, Llano, Milam, Mills, Navarro, Palo Pinto, Parker, Rains,
Robertson, Rockwall, Somervell, Stephens, Tarrant, Xxxxxxxxxxxx, Xxxxxx, Van
Zandt, Washington, Williamson, Wise, and Young.
2. XXXXXXXXX-XXXX BASIC RESPONSIBILITIES
X. Xxxxxxxxx-Xxxx shall advertise Equipment in various advertising media.
X. Xxxxxxxxx-Xxxx shall provide sales assistance, engineering and application
advice, reasonable quantities of advertising materials, campaigns and
instruction in sales and service.
X. Xxxxxxxxx-Xxxx shall provide Equipment in quantities necessary to meet
Distributor's reasonable requirements.
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3. DISTRIBUTOR BASIC RESPONSIBILITIES
A. Distributor shall conduct its business and shall maintain business
hours customary in the trade from its offices and facilities located at 0000
Xxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx 00000 and 000 Xxxx Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000. Any change in such location shall not be undertaken without the
prior written consent of Xxxxxxxxx-Xxxx.
B. Distributor shall use its best efforts to develop business, to
promote the sale of and to sell Equipment covered by this Agreement within its
Area of Primary Sales Responsibility and shall furnish prompt, efficient, and
courteous service.
C. Distributor shall pay promptly for Equipment in accordance with the
Terms of Payment as set forth within Attachment 2 of this Agreement.
D. Distributor shall maintain a record, which Xxxxxxxxx-Xxxx may
examine at any time, relating to Equipment sold, showing the serial number (if
applicable) of the unit sold, the date of delivery thereof, and the name and
address of the buyer, and shall otherwise provide a summary of marketing/sales
data to Xxxxxxxxx-Xxxx in a form furnished by or acceptable to Xxxxxxxxx-Xxxx.
E. Distributor shall maintain stocking levels in sufficient quantities
to satisfy customer requirements and shall otherwise provide inventory reports
to Xxxxxxxxx-Xxxx in a form furnished by or acceptable to Xxxxxxxxx-Xxxx.
F. Distributor shall not sell, offer for sale, or use in the repair of
Equipment, as new Xxxxxxxxx-Xxxx parts, any part or parts which are not in fact
genuine Xxxxxxxxx-Xxxx parts.
G. Distributor shall receive, investigate and handle all complaints
received from users of Equipment. All complaints received by Distributor which
cannot be readily remedied shall be promptly reported in detail to
Xxxxxxxxx-Xxxx.
H. Distributor shall provide financial reports in a form and substance
acceptable to Xxxxxxxxx-Xxxx within a reasonable period of time after requested
by Xxxxxxxxx-Xxxx.
4. SALES OBJECTIVE AND SERVICE OBLIGATIONS
As of the date of entering into this Agreement and at least on an
annual basis, the parties shall mutually agree and specifically identify in
writing sales objectives to be met by the Distributor over a prescribed period
of time. Failure of Distributor to satisfy these sales objectives shall be
grounds for termination of this Agreement, or at the discretion of
Xxxxxxxxx-Xxxx to reduce the Area of Primary Sales Responsibility.
5. USE OF TRADEMARKS AND SIGNS
The Distributor shall not use, directly or indirectly, in whole or in
part, Xxxxxxxxx-Xxxx'x name, or "I-R," or any other trademark or name that is
now or may hereafter be owned by Xxxxxxxxx-Xxxx, as part of the Distributor's
corporate or business name, or in any way in connection with the Distributor's
business, except in the manner and to the extent that Xxxxxxxxx-Xxxx may
specifically consent in writing. If any such trademarks or names are used in any
way by the Distributor with the express written approval of Xxxxxxxxx-Xxxx, the
Distributor on the termination of this Agreement shall delete and discontinue
all such use and shall not thereafter use any name, title, or expression in
connection with any business in which the Distributor may thereafter be engaged
which, in the judgment of Xxxxxxxxx-Xxxx, so nearly resembles any trademark or
name or part thereof owned by Xxxxxxxxx-Xxxx, as may be likely to lead to
confusion or uncertainty on the part of users of the manufactures of
Xxxxxxxxx-Xxxx.
6. WARRANTY AND LIMITATION OF LIABILITY--CONDITIONS OF SALE
A. Attached to this Agreement is a form entitled Warranty and
Limitation of Liability, identified as Attachment 3. In accordance with such
form Xxxxxxxxx-Xxxx extends a warranty (with certain limitations and exclusions)
to the initial user, through the Distributor. Xxxxxxxxx-Xxxx will satisfy its
warranty obligations, provided that the provisions of Attachment 3 are part of
Distributor's conditions of sale to the initial user of Equipment. Should the
Distributor fail to incorporate the provisions of Attachment 3 as a basis of
sale to the initial user, the Distributor assumes all responsibility and
liability associated with the sale of such Equipment.
X. Xxxxxxxxx-Xxxx reserves the right to modify the Warranty and
Limitation of Liability, comprising Attachment 3, upon written notice to
Distributor.
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7. PAYMENT OF TAXES
Unless otherwise stated, Xxxxxxxxx-Xxxx'x prices do not include sales,
use, excise or similar taxes. Consequently, in addition to the prices in effect
at the time of sale, the amount of any present or future sales, use, privilege,
excise or similar tax, local, state or federal, applicable to sale of the
Equipment hereunder shall be paid by the Distributor. In lieu thereof, the
Distributor shall provide Xxxxxxxxx-Xxxx with a tax-exemption certificate
acceptable to the taxing authorities.
8. TERMS AND SHIPMENTS
All shipments shall be made F.O.B. Xxxxxxxxx-Xxxx factories, or F.O.B.
other shipping points if specified by Xxxxxxxxx-Xxxx, at which point title and
risk of loss of Equipment shall pass to Distributor. Distributor shall be
responsible for the preparation or submission of claims against carriers for
damage to or loss of Equipment in transit. Xxxxxxxxx-Xxxx reserves the right to
accept or reject any order received under this Agreement.
9. DELIVERY
Xxxxxxxxx-Xxxx shall not be liable for loss, damage, detention or delay
due to acts of God, war, riots, strikes, work stoppages, fires, accidents, acts
of civil or military authority including governmental laws, orders, priorities,
or regulations, delay in transportation, car shortages, delay by suppliers of
materials, acts of Distributor, or other causes beyond the reasonable control of
Xxxxxxxxx-Xxxx. If shipment or any other act or condition affecting payment for
the Equipment or any part thereof shall be delayed on account of the
Distributor, payment shall become due when Distributor is notified that the
Equipment is ready for shipment, and Equipment shall be held at Distributor's
risk and expense. Shipments are contingent upon Distributor's maintaining a
financial condition satisfactory to Xxxxxxxxx-Xxxx.
10. UNIFORM COMMERCIAL CODE FINANCING STATEMENTS
At the request of Xxxxxxxxx-Xxxx, Distributor shall join Xxxxxxxxx-Xxxx
in executing security agreements and financing statements pursuant to the
Uniform Commercial Code and Distributor authorizes Xxxxxxxxx-Xxxx to file a
financing statement signed only by Xxxxxxxxx-Xxxx in all places where necessary
to perfect Xxxxxxxxx-Xxxx'x security interest in all jurisdictions where such
authorization is permitted by law. In such jurisdiction where the applicable
processes of the Uniform Commercial Code have not become effective and
enforceable, Distributor shall at the request of Xxxxxxxxx-Xxxx execute such
documents and forms and authorize Xxxxxxxxx-Xxxx to file and record such
documents and forms in such places as may be necessary in Xxxxxxxxx-Xxxx'x sole
judgment to perfect a security interest and/or lien in favor of Xxxxxxxxx-Xxxx.
11. RELATIONSHIP BETWEEN PARTIES
The relationship between the Distributor and Xxxxxxxxx-Xxxx under this
Agreement is intended to be that of buyer and seller. The Distributor is an
independent contractor and neither it nor its employees, shall under any
circumstances, be considered to be agents or employees of Xxxxxxxxx-Xxxx. Except
as Xxxxxxxxx-Xxxx may specifically authorize in writing signed by one of its
officers, the Distributor shall have no right and shall not attempt to enter
into contracts or commitments in the name of or on behalf of Xxxxxxxxx-Xxxx or
to bind Xxxxxxxxx-Xxxx in any respect whatsoever.
12. REMEDIES
A. The remedies of the parties are as set forth under this Agreement.
B. With respect to the Distributor's sale of Equipment to users, or
with respect to the Distributor's own use of such Equipment, the liability of
Xxxxxxxxx-Xxxx to the user or Distributor shall not exceed the purchase price of
the Equipment upon which such liability arises, whether the claim is based on
contract, warranty, negligence, indemnity, strict liability or otherwise.
C. Except for claims by third parties, in no event shall either party
to this Agreement be liable to the other for any consequential, incidental,
indirect, special or punitive loss or damage arising out of this Agreement,
whether or not such loss or damage is based on contract, warranty, negligence,
indemnity, strict liability or otherwise.
D. The provisions of this Article shall survive the termination of this
Agreement.
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13. DURATION AND TERMINATION OF AGREEMENT
A. This Agreement, unless terminated as hereinafter provided, shall
continue in full force and effect until terminated by either party, without
cause, on sixty (60) days written notice to such effect given to the other
party.
B. This Agreement may be terminated by Xxxxxxxxx-Xxxx on thirty (30)
days written notice to Distributor, should the Distributor fail to satisfy the
sales objectives as prescribed by this Agreement.
C. This Agreement may be terminated by either party on one (1) day
written notice to the other party, upon the occurrence of any other breach of
this Agreement, including, without limitation; the insolvency or bankruptcy of
the other party, the breach of any collateral agreements entered into in
connection with this Agreement, or if the financial condition or either party
becomes so impaired in the opinion of the other party as to endanger its ability
to perform its obligations in accordance with this Agreement.
D. This Agreement may be terminated by Xxxxxxxxx-Xxxx on one (1) day
written notice to Distributors, if the Distributor assigns this Agreement, or
any rights hereunder, without Xxxxxxxxx-Xxxx'x prior written consent; if there
is a change in the control or management of the Distributor which is
unacceptable to Xxxxxxxxx-Xxxx; or if the Distributor ceases to function as a
going concern or to conduct its operations in the normal course of business.
E. In the event of termination of this Agreement, the return of
Equipment, if any, shall be in accordance with Xxxxxxxxx-Xxxx, Construction
Equipment Group returns policy in effect on the date of such termination.
F. Upon termination, the Distributor will immediately return to
Xxxxxxxxx-Xxxx all price books, manuals, catalogs, literature, forms and any
other sales and administrative aids supplied by Xxxxxxxxx-Xxxx. In addition, all
record cards and sales data provided by Xxxxxxxxx-Xxxx shall be returned.
14. MISCELLANEOUS PROVISIONS
A. Any notice to be given pursuant to this Agreement shall be addressed
to the respective parties at the address set forth in the preamble of this
Agreement.
B. This Agreement including its attachments contains the entire and
only agreement between the parties respecting the sale to and the purchase by
the Distributor of the Equipment referred to herein, and any representation,
promise or condition not incorporated herein shall not be binding on either
party.
X. Xxxxxxxxx-Xxxx and Distributor shall mutually treat as confidential
and safeguard all information,.reports and record pertaining to this Agreement.
D. Distributor shall not transfer or assign the Agreement, or any part
thereof, or any rights thereunder without the written consent of Xxxxxxxxx-Xxxx.
E Either parties failure to enforce, or waiver of, any rights or terms
of this Agreement, shall not be considered a waiver of its future rights to
strictly enforce the terms of this Agreement.
F. This Agreement is deemed executed and delivered in the State of New
Jersey and all questions arising out of or under this Agreement shall be
governed by the laws of the State of New Jersey.
IN WITNESS WHERE OF the parties have executed this Agreement effective as of the
date set forth above.
Attachments:
1--Discount Schedule
2--Terms of Payment
3-Warranty and Limitation of Liability
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XXXXXXXXX-XXXX COMPANY
XXXXXXXXX-XXXX COMPANY
CONSTRUCTION & MINING GROUP
DISTRIBUTOR AGREEMENT
PORTABLE COMPRESSORS
DOMESTIC DISCOUNT SCHEDULE
STOCKING DISTRIBUTOR
Date: _____________
Discount from
Complete Compressors Published List Prices
100 CFM through 1600 .........................................................25%
Spare Parts ...........................................................See Note A
Prices for Complete Compressors are F.O.B. Factory
Discounts apply only for U.S.A. destinations, including Alaska and Hawaii.
Note "A":
NORMAL STOCK - Normal Stock orders for parts -30% Discount.
Freight:
Transportation is allowed cheapest way (TACW). I-R determines mode of
transportation. Distributor may specify mode but freight charges will be collect
or billed to distributor if carrier refuses collect shipment.
Alaska and Hawaii: TACW to port of exit Continental United States.
EMERGENCY -
Emergency orders for parts - 20% Discount.
Freight: Freight collect or billable to Distributor if carrier refuses collect
shipment. Distributor may specify mode of transportation.
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XXXXXXXXX-XXXX COMPANY
CONSTRUCTION & MINING GROUP
DISTRIBUTOR AGREEMENT
PORTABLE LIGHT TOWERS
DOMESTIC DISCOUNT SCHEDULE
STOCKING DISTRIBUTOR
Date: _____________
Complete Light Towers Discount from
Published List Prices
L6 and LS Series ............................................1-5 (units) - 30%
.............................................................6 or more - 30+5%
Prices for Complete Light Towers are F.O.B Factory.
Discounts apply only for U.S.A. destinations, including Alaska and Hawaii.
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XXXXXXXXX-XXXX COMPANY
CONSTRUCTION & MINING GROUP
DISTRIBUTOR AGREEMENT
PORTABLE LIGHT TOWERS
DOMESTIC DISCOUNT SCHEDULE
STOCKING DISTRIBUTOR
Date: _____________
Discount from
Complete GENSETS Published List Prices
Complete GENSETS Published List Prices
30 and 50 kw ...............................................................40%
SpareParts ..........................................................See Note A
Prices for Complete Compressors are F.O.B. Factory
Discounts apply only for U.S.A. destinations, including Alaska and Hawaii.
Note "A":
NORMAL STOCK - Normal Stock orders for parts - 30% Discount.
Freight: Transportation is allowed cheapest way (TACW). I-R determines mode of
transportation. Distributor may specify mode but freight charges will be collect
or billed to distributor if carrier refuses collect shipment.
Alaska and Hawaii: TACW to port of exit Continental United States.
EMERGENCY -
Emergency orders for parts - 20% Discount.
Freight: Freight collect or billable to Distributor if carrier refuses collect
shipment. Distributor may specify mode of transportation.
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XXXXXXXXX-XXXX COMPANY
CONSTRUCTION & MINING GROUP
DISTRIBUTOR SELLING AGREEMENT
TERMS OF PAYMENT SCHEDULE
Terms of Payment described herein supersede all prior Terms of Payment
Schedules.
All terms not defined herein shall have the meaning set forth in the
Xxxxxxxxx-Xxxx Company Construction & Mining Group Distributor Selling Agreement
Form LD-131, November 1990.
Distributor shall pay I-R on the following terms:
A. Equipment, Parts and Pre-Paid Freight.
On Equipment, parts and pre-paid freight payment in full shall be made within 30
days from the date of invoice of the respective purchase. Any sums not paid
within such time shall accrue a service charge of 1 % per month for each month
or any part thereof upon such unpaid amount.
B. Special Terms.
At the time of entry of an order with I-R, and acceptance of that order by I-R
for Equipment, the Distributor may elect the following Special Terms of Payment
for Equipment for Stock or for inclusion in the Distributor's Rental Fleet.
I-R shall deliver to the Distributor a Schedule of Payment which shall reflect
the Distributor's payment obligations to I-R pursuant to the terms hereinafter
set forth.
NOTE: DISTRIBUTOR WILL DEEM TO HAVE ACCEPTED SUCH PAYMENT SCHEDULE UNLESS
WRITTEN NOTICE IS RECEIVED WITHIN 30 DAYS OF THE DATE OF SAID SCHEDULE.
Amortization shall be reflected based on the following percentages:
Group -2.778% of net purchase price of equipment (freight excluded) per month
for 36 months.
Group -2.381% of net purchase price of equipment (freight excluded) per month
for 42 months.
Group -2.083% of net purchase price of equipment (freight excluded) per month
for 48 months.
On equipment invoiced under the standard floor plan program, payment of each
principal curtailment and interest, as hereinafter provided, shall commence on
the earlier of the happening of the following events:
1) Thirty (30) days after the equipment has been placed in service or in the
Distributor's Rental Fleet.
2) Thirty (30) days after the termination of the floor plan, and on the same day
of each month thereafter until the entire balance is paid.
When a rental split floor plan is offered, distributor will remit a
pre-specified percentage of all distributors rental revenue invoiced or
collected during the floor plan period. Payment of each principal curtailment
and interest, as hereinafter provided shall commence thirty (30) days after the
termination of the floor plan, and on the same day of each month thereafter
until the entire balance is paid.
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IN THE EVENT THAT ANY TIME THE EQUIPMENT IS SOLD, OR DISPOSED OF, DISTRIBUTOR
SHALL PAY IMMEDIATELY THE OUTSTANDING UNPAID AMOUNT OF THE PURCHASE PRICE OF THE
EQUIPMENT TOGETHER WITH ALL THE INTEREST ACCRUED.
Interest on the principal balance shall be calculated monthly at a rate equal to
the prime rate (in effect at Chase Manhattan Bank in New York as of the 25th day
of the preceding month) plus or minus a predetermined number of basis points for
each month there remains outstanding a portion of the principal amount.
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XXXXXXXXX-XXXX CONSTRUCTION & MINING EQUIPMENT
CONSTRUCTION & MINING SOLD BY DISTRIBUTORS
Warranty
Xxxxxxxxx-Xxxx, though its distributor, warrants that each item of equipment
manufactured by it and delivered hereunder to the initial user to be free of
defects in material and workmanship for a periods of three (3) months from
initial operation or six (6) months from the sate of shipment to the initial
user, whichever first occurs.
With respect to the following types of equipment, the warranty period enumerated
will apply in lieu of the foregoing warranty period.
A. Aftercoolers, Drill Moutnings and Xxxxx Rotary Heads - the earlier of six (6)
months from initial operation or nine (9) month from date of shipment to the
initial user.
B. Portable Compressors, Portable Generator Sets (GENSETS), Portable Light
Towers, and Abrasive Blasting Equipment - the earlier of twelve (12) months from
shipment to, or the accumulation of 2,000 hours of service by the initial user.
C. All Compressor Air Ends, GENSET Generators and Paving Brakers - The earlier
of twenty-four (24) months from shipment to, or the accumulation of 4,000 hours
of service by, the initial user. For Air Ends, the warranty against defects will
include replacement of the complete Air End, provided the original Air End is
returned assembles and unopened.
D. Pavers, Forklifts, Milling Machines, Pedestrian Compactors (including
baseplates, upright and walk behinds) and Rotary Drills - the earlier of six (6)
months from shipment to, or the accumulation of 1,000 hours of service by, the
initial user.
E. Jackhammers and Self-Propelled Compactors --The earlier of twelve (12) months
from shipment to or accumulation of 1,000 hours of service by the initial user.
F. Downhole Drills - In lieu of the repair or replacement of defective parts,
Xxxxxxxxx-Xxxx may elect to issue fill or partial credit toward the purchase of
a new part. The extent of credit issued will be determined by pro rating against
the normal service life of the part in question.
G. Spare Parts (excluding Downhole Drills) - Three (3) months from the date of
shipment.
Xxxxxxxxx-Xxxx will provide a new part or repaired part, at its election, in
place of any part which is found upon its inspection to be defective in material
and workmanship during the period prescribed above. Such part will be repaired
or replaced without charge to the initial user during normal working hours at
the place of business of an Xxxxxxxxx-Xxxx distributor authorized to sell the
type of equipment involved or other establishment authorized by Xxxxxxxxx-Xxxx.
User must present proof of purchase and date at the time of exercising warranty.
This warranty does not apply to failures occurring as a result of abuse, misuse,
negligent repairs, corrosion, erosion and normal wear and tear, alterations or
modification made to the product without express written consent of
Xxxxxxxxx-Xxxx; or the failure to follow the recommended operating practices in
the product's operating and maintenance publications.
Accessories or equipment furnished by Xxxxxxxxx-Xxxx, but manufactured by
others, including, but not limited to, engines, tires, batteries, engine
electrical equipment, hydraulic transmissions, carriers, shall carry whatever
warranty the manufactures have conveyed to Xxxxxxxxx-Xxxx and which can be
passes into the initial user.
THIS WARRANTS IS IN LIEU OF ALL OTHER WARRANTIES (EXCEPT OF TITLE), EXPRESSED OR
IMPLIED, AND THERE ARE NO WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A
PARTICULAR PURPOSE.
Limitation of Liability
THE REMEDIES OF THE USER SET FORTH UNDER THE PROVISIONS OF WARRANTY OUTLINED
ABOVE ARE EXCLUSIVE AND THE TOTAL LIABILITY OF XXXXXXXXX-XXXX OR ITS
DISTRIBUTORS WITH RESPECT TO THIS SALE OR THE EQUIPMENT AND SERVICE FURNISHED
HEREUNDER, IN CONNECTION WITH THE PERFORMANCE OR BREACH THEREOF, OR FROM THIS
SALE DELIVERY, INSTALLATION, REPAIR OR TECHNICAL DIRECTION COVERED
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BY OR FURNISHED UNDER THIS SALE WHETHER BASED ON CONTRACT, WARRANT, NEGLIGENCE,
INDEMNITY, STRICT LIABILITY OR OTHERWISE SHALL NOT EXCEED THE PURCHASE PRICE OF
THE UNIT IF EQUIPMENT UPON WHICH SUCH LIABILITY IS BASED.
XXXXXXXXX-XXXX, ITS SUPPLIER(S) AND ITS DISTRIBUTORS IN NO EVENT SHALL BE LIABLE
TO THE USER, ANY SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR ASSIGNEE RELATING
TO THIS SALE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE
DAMAGES ARISING OUT OF THIS SALE OR ANY BREACH THEREOF, OR ANY DEFECTS IN, OR
FAILURE OF, OR MALFUNCTION OF THE EQUIPMENT UNDER THIS SALE WHETHER BASED UPON
LOSS OF USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE,
IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION,
INCREASED EXPENSES OF OPERATION OF THE EQUIPMENT. COST OF PURCHASED OF
REPLACEMENT POWER OR CLAIMS OF USERS OR CUSTOMERS OF THE USER FOR SERVICE
INTERRUPTION WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY,
NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
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