TERMS & CONDITIONS
Valid as of 4/29/2026
1. Scope. In these Terms, “Seller” means Enercon Engineering, LLC, and “Buyer” means the customer buying products from Seller (as defined herein). Seller and Buyer are collectively referred to herein as the “Parties” and individually, a “Party.” The goods and materials sold by Seller to Buyer are the “Products” under the Agreement. The sale of Products by Seller is expressly conditioned upon Buyer’s agreement to these terms and conditions of sale (these “Terms”). These Terms are the only terms that govern the sale of Products by Seller to Buyer. The accompanying Seller Document(s) (as defined herein), if any, and these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, representations, warranties, and communications, both written and oral. “Seller Documents” means quotations, confirmation of sale, invoices, or similar documentation reflecting the sale of Products by Seller to Buyer. Buyer accepts these Terms by signing and returning Seller’s quotation, by submitting a Purchase Order (defined herein) to Seller (in response to a quotation or otherwise), by submitting instructions to Seller to ship the Product, or by accepting or paying for Products. “Purchase Order” means ordering document issued by Buyer to Seller that specifies the Product and which is confirmed in writing by Seller in accordance with these Terms. These Terms control over any term in a purchase order or any other document provided by Buyer (“Buyer Documents”), and Seller expressly rejects all terms and conditions in all Buyer Documents. Fulfillment of Buyer's order does not constitute acceptance of any Buyer Documents and does not serve to modify these Terms. Acceptance of a Purchase Order by Seller does not constitute an agreement to accept future purchase orders from Buyer. Seller may reject any purchase order from Buyer for any reason prior to delivery of the Products.
2. Payment Terms. Except as otherwise set forth in Seller’s invoice or otherwise agreed in writing by the Parties, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice (NET 30). For projects with a total contract value of $100,000 or more, Seller’s invoicing shall be milestone-based as follows unless otherwise agreed in writing: (a) fifty percent (50%) invoiced upon release of the project and (b) fifty percent (50%) invoiced upon successful factory acceptance test (“FAT”) (collectively, the “Milestone Invoices”). For projects with a total contract value less than $100,000, payment terms shall be NET 30. Field service and training shall be billed monthly (in arrears) until job completion. All payment terms set forth in these Terms are subject to Seller’s prior written approval of Buyer’s credit, in Seller’s sole discretion; if such approval is withheld, payment will be due in advance of Seller’s performance of its obligations hereunder. Buyer shall make all payments in U.S. dollars. Buyer shall not withhold payment of any amount due and payable under this Agreement by reason of any setoff of any claim or dispute with Seller, including any dispute relating to Seller’s alleged breach of this Agreement. Buyer shall pay interest on all late payments at the greater of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs and expenses, including attorneys’ fees, incurred in collecting any past due amounts, regardless of whether litigation is commenced. Seller, in its sole discretion, may suspend its performance under this Agreement until all payments for Products or other past due amounts are made. Seller may also require prepayment from Buyer, or cancel any outstanding Purchase Order, due to Buyer’s financial condition or nonpayment. Buyer shall reimburse Seller for all reasonable charges related to shipments cancelled or delayed by Seller under this Section 2. Seller may, upon notification to Buyer, apply any payments received (a) to Buyer’s oldest outstanding invoices, regardless of any instructions to the contrary from Buyer; and (b) against any damages Seller suffers as a result of any breach of this Agreement by Buyer. If a Change in Market Conditions (as defined below) occurs prior to delivery of the Products and results in increased costs to Seller, Seller may adjust the purchase price for the Products by providing written notice to Buyer. For purposes of this Section, a “Change in Market Conditions” means any change in input costs, labor costs, inventory storage fees, shipping fees, trailer and equipment rental fees, manufacturing expenses, material costs, tariffs, duties, or similar charges, or compliance-related costs arising from any applicable law or regulation.
3. Delivery. Except as otherwise agreed in writing by the Parties, all Products purchased under this Agreement are shipped EXW Seller’s designated facility (Incoterms 2020) (the “Delivery Point”). Any shipment date in an order acknowledgment is not fixed or guaranteed, and Seller will deliver the Products within a reasonable time after the acceptance of a Purchase Order, subject to the Products’ availability. Seller shall not be liable for any delay of delivery, loss of Products, or damage to Products in transit. Buyer shall make any claims for shortages, losses, or damages sustained in transit with the applicable transportation carrier. Seller may deliver Products in advance of the delivery schedule. Seller may, without liability, make partial shipments of Products to Buyer. Each such shipment constitutes a separate sale, and Buyer shall pay for the Products shipped, whether such shipment is in whole or partial fulfillment of Buyer's purchase order. Delays caused by Buyer may impact cost and schedule. In the event Buyer causes Seller to delay engineering, manufacturing, shipping, installation, or startup of equipment under this Agreement or any Seller Document, any additional costs incurred by Seller shall be reimbursed by Buyer. Seller shall not be responsible for delays in delivery caused by acts of God, government rulings, strikes, accidents, delays or default of Seller’s suppliers, delays caused by acts of Buyer, or other causes outside of Seller’s reasonable control. Should Buyer require Seller to delay engineering, manufacturing, shipping, installation, or startup by more than thirty (30) days, then Seller shall invoice Buyer for a total of one hundred percent (100%) of the value of all work completed, and such invoice shall be due and payable net fifteen (15) days.
4. Title and Risk of Loss. Title and risk of loss pass to Buyer once Seller makes the Products available for shipment at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and a purchase money security interest in and to all of the right, title and interest of Buyer in, to, and under the Products, wherever located and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all profits and proceeds (including insurance proceeds) of the foregoing. Any such security interest will be satisfied by payment in full of the invoiced amount. The purchase money security interest granted under this provision constitutes a purchase money security interest under the Wisconsin Uniform Commercial Code. Buyer shall, on request from Seller, execute promptly any documents (including a UCC-1) and perform any other acts, at Buyer's sole expense, that Seller considers necessary or advisable to confirm, continue and/or perfect the security interests granted under these Terms. Buyer irrevocably authorizes Seller to file at Buyer’s expense any financing statement related to the Products without Buyer’s signature, except where prohibited by law.
5. Taxes. All prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, levies, and charges of any kind imposed by any government authority on any amounts payable by Buyer (collectively “Taxes”). Buyer shall pay all Taxes arising from the sale of the Products and all other taxes, charges, and duties of whatever nature assessed upon the Products. Buyer should review use tax obligations in all jurisdictions in which Buyer operates, including, as applicable, Puerto Rico and other U.S. territories. Buyer may owe use tax on purchases made from the Seller and may need to remit directly to the taxing authority. In no event will Seller be liable for Taxes payable by Buyer. In the event Seller is required to pay Taxes or other similar charges payable by Buyer, Buyer shall reimburse Seller for such Taxes and charges on demand.
6. Cancellation; Acceptance; Returns. After acceptance by Seller, Buyer shall not cancel or terminate any purchase order, and no order is subject to cancellation or changes in specifications, shipping schedules, or other conditions originally agreed upon, without (i) Seller’s prior written consent, which may be granted or withheld in Seller’s sole discretion, and (ii) Buyer’s agreement to compensate Seller for all expenses incurred and commitments made by Seller as a result of such cancellation or change, including the applicable cancellation fee schedule set forth below. Buyer must provide any cancellation or change request to Seller in writing. If Seller accepts Buyer’s cancellation or change request, Seller will invoice the appropriate cancellation fee and/or other amounts due to the account associated with Buyer. Unless otherwise agreed in writing, the cancellation fee schedule shall be as follows (expressed as a percentage of the total order value): (a) 10% – Order received and entered on factory, work not started, material not ordered; (b) 30% – Drawings for approval submitted; (c) 60% – Approved drawings returned; job released for manufacture; (d) 80% – Material accumulated and production started; and (e) 100% – Manufacturing completed. For all other orders, Buyer shall inspect the Products within two days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. A “Nonconforming Product” shall only occur if the Product shipped is different than the Product identified in the Buyer’s Purchase Order. If Buyer notifies Seller within the Inspection Period of a Nonconforming Product, Seller shall, in its sole discretion, (a) replace such Nonconforming Product with a conforming Product, or (b) credit or refund the price for such Nonconforming Product. Buyer shall ship, at Seller's expense and risk of loss, the Nonconforming Product to Seller's manufacturing facility. If Seller exercises its option to replace a Nonconforming Product, Seller shall, after receiving Buyer's shipment of a Nonconforming Product, ship to Buyer, at Seller's expense and risk of loss, the replacement Product. Buyer acknowledges and agrees that the remedies set forth in this Section 6 are Buyer's exclusive remedies for the delivery of Nonconforming Products. Buyer shall not return any Product to Seller without Seller’s prior written consent. If Buyer receives Seller’s written consent to return a Product, Seller may, in its sole discretion, require Buyer to pay a restocking fee determined by Seller. No modifications to a Purchase Order may occur without Seller’s prior written consent.
7. Limited Warranty. Seller’s limited warranty for the Products shall be as provided in Seller’s current warranty policy and procedure statement applicable to the Products (the “Warranty”) in effect as of the date of sale, which is hereby incorporated into this Agreement by reference. Seller may amend the Warranty, at any time, in its sole discretion without notice. Warranty service can only be performed by one of Seller’s authorized warranty service providers. SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR PARTICULAR OR SPECIAL PURPOSES. Seller shall not be liable for a breach of the Warranty if: (a) Buyer continues to use a Product after giving Seller notice of a defect in such Product; (b) a defect in a Product arises from Buyer’s failure to follow Seller's oral or written instructions as to the storage, environmental conditions, installation, testing, commissioning, use, or maintenance of the Product; or (c) Buyer alters or repairs a Product without the prior written consent of Seller or alters or repairs such Product with a third-party product, hardware, or product that has not been previously approved in writing by Seller. With respect to any Product defect verified by Seller during the warranty period, Seller shall, in its sole discretion, either: (i) repair or replace such Product or (ii) credit or refund the price of such Product provided that, if Seller so requests, Buyer shall, at Buyer's expense, return such Product to Seller. THE REMEDIES SET FORTH IN THIS SECTION ARE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, OR ENHANCED DAMAGES, LOSS OF USE, LOSS OF DATA, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, OR (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE OF THE PRODUCT GIVING RISE TO THE CLAIM.
9. Limitation of Actions. Buyer may not commence any action or demand arbitration against Seller more than 18 months after the date of sale of the Product to which the action or arbitration would relate.
10. Indemnity. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and assigns against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Seller arising out of or relating to (a) the Products purchased from Seller; (b) Buyer's negligence, willful misconduct, or breach of this Agreement; and (c) any third-party contractual obligation assumed by Buyer. Buyer shall not enter into any settlement relating to any of the foregoing obligations without Seller's prior written consent.
11. Anti-Corruption. Buyer agrees that in performing under this Agreement it will not offer, promise, or make any payments, loans, gifts of money, or anything of more than nominal value to an official or employee of any government; or to an official or employee of any department, agency, or instrumentality of a government; or to an employee of any corporation or entity owned or controlled by a government; or to an immediate family member of such officials or employees; or to any political party, party official, or political candidate; or to any other person if Buyer knows or has reason to believe that any part of the payment, loan, or gift will be given directly, indirectly, or through a third party to any of the persons described above. Buyer represents and warrants that none of its agents, partners, owners, principals, or employees is or will be an official or employee of any government department, entity, instrumentality, or government-owned corporation, nor of any political party, nor is any of them a political candidate. Buyer has no right to, and shall not, assign any right or obligation under this Agreement, and Buyer shall not use any agent or representative unless Seller has approved such agent or representative in writing. Buyer agrees to make and keep books, records and accounts that accurately, fairly, and in reasonable detail reflect its performance hereunder.
12. Compliance with Laws. Buyer shall comply with all laws, regulations, and ordinances applicable to this Agreement, the use of the Products and the operation of Buyer’s business. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer assumes all risk with respect to compliance of Products with applicable laws and acknowledges that certain products may have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of (“Actions”) the Products and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after Seller's delivery hereunder, and further agrees to ensure that its customers comply with such requirements.
13. No Waiver. No failure or delay by Seller in exercising any right under this Agreement will constitute a waiver of that right. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
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14. Export Restrictions. Buyer shall not export, sell or otherwise dispose of any Products or technical data to any country not approved for export or to any person or entity Buyer knows, or should know, will result, directly or indirectly, in disposition of the Products contrary to the U.S. Export Administrative Regulations (15 CFR parts 730-774), the regulations of The Office of Foreign Assets Control (31 CFR 500-597) implemented pursuant to the Trading with the Enemy Act, (50 USC 1-44), the International Emergency Economic Powers Act (50 USC 1701-1706), to the extent applicable, the U.S. International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. Parts 120–130), or any other sanction or embargo maintained by the Bureau of Industry and Security or the Office of Foreign Assets Control.
15. Governing Law; Venue; Jurisdiction. This Agreement, and all matters arising out of or relating to it whether sounding in contract, tort, equity, or statute, shall be governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to its conflicts of law principles. Any legal action or proceeding arising out of or relating to this Agreement must be filed in the United States District Court for the Eastern District of Wisconsin or the Waukesha County Circuit Court. Each party irrevocably consents and submits to the exclusive jurisdiction of such courts in any such action or proceeding and agrees that a final judgment in any action is conclusive and may be enforced in any other jurisdictions by suit on the judgment or in any other manner provided by law. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS AND IS HEREBY EXPRESSLY DISCLAIMED BY THE PARTIES WITH RESPECT TO THESE TERMS AND THE TRANSACTIONS CONTEMPLATED HEREBY.
16. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief and any other legally available remedies for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer, as established by documentary evidence, on a non-confidential basis from a third party. This Section shall survive the termination of this Agreement.
17. Force Majeure. Any delay or failure of either party to perform its obligations under this Agreement (other than failure to pay any amounts due) will be excused to the extent that the delay or failure was caused by or results from an event beyond such party's reasonable control including, without limitation, the following events (“Force Majeure Events”): acts of God, hurricane, flood, fire, earthquake, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, other civil unrest, requirements of applicable laws, regulations, or ordinances, embargoes, blockades, action by any governmental authority, national or regional emergency, strikes, labor stoppages or slowdowns, other industrial disturbances, shortage of adequate power or transportation facilities, outbreaks of disease, epidemics, or pandemics. If Seller determines, in its sole discretion, that its ability to meet the demand for the Products is hindered, limited, or made impracticable due to a Force Majeure Event, Seller may allocate its available supply of Products among itself and its purchasers in any manner it chooses, without liability for any failure of performance resulting from such allocation.
18. Termination. In addition to any remedies provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) fails to comply with any other term of this
Agreement; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
19. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
21. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other party at its known address (or to such other address that the receiving party may designate from time to time). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.
22. Severability. If any provision of this Agreement is found unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of the remaining provisions of this Agreement.
23. Amendment. Seller may update or amend this Agreement from time to time. Any amendments will become effective upon posting on Seller’s website and will apply only to orders placed after the effective date of the revised Agreement.
24. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Limitation of Liability, Indemnity, Compliance with Laws, Confidential Information, and Governing Law; Venue; Jurisdiction.
25. Policies. Buyer shall comply with Seller’s policies applicable to the Buyer and/or the Products and shall participate in any programs and initiatives required by such policies, in each case, as updated or modified by Seller from time to time, including Seller’s Minimum Advertised Price Policy and Seller’s Reseller Policy. Any breach, default, or violation of any such policies shall be deemed a material breach of the terms of this Agreement.
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