ZEPHYR WIND SERVICES MN, LLC
ZEPHYR WIND PARTS, LLC
ZEPHYR REPOWER, LLC

TERMS & CONDITIONS

STANDARD TERMS AND CONDITIONS OF SALE AND REPAIR

  1. ACCEPTANCE: All orders are subject to acceptance by ZEPHYR Wind Services MN, LLC, ZEPHYR Wind Parts, LLC, ZEPHYR Repower, LLC (“ZEPHYR”). Any acceptance by ZEPHYR of Customer’s order is expressly made conditional on Customer’s assent to any additional or different terms and conditions contained herein, and all Services and charges listed herein shall be, in the case of conflict between the terms and conditions of Customer and ZEPHYR, interpreted and governed exclusively by the terms and conditions contained herein.  ZEPHYR shall not be bound by any terms and conditions proposed by Customer, whether in its purchase order or otherwise, which are additional to or different from the terms and conditions set forth herein, unless and only if accepted in writing by a principal officer of the ZEPHYR or his designated representative.
  2. TAXES: ZEPHYR’s prices do not include any applicable sales, use, excise, value added or similar taxes; and the amount of any such tax which ZEPHYR may be required to pay or collect will be added to each invoice unless Customer has furnished ZEPHYR with a valid tax exemption certificate acceptable to the taxing authorities. Where Customer fails to furnish the required documentation, the previously unpaid sales, use, excise, or similar tax will be billed to Customer.
  3. TERMS: Terms are cash net 30 days. Amounts past due are subject to a service charge of 1 and 1/2 percent per month (or fraction thereof) or maximum contract rate permitted by law.  If ZEPHYR deems that by reason of the financial condition of Customer or otherwise, the continuance of any services or shipment on the terms specified herein is not justified, then ZEPHYR may require full or partial payment in advance. ZEPHYR at its option may retain possession of equipment repaired, modified, inspected, tested, maintained or serviced under this agreement until its charges for services are paid.
  4. PRICE POLICY: ZEPHYR’s prices shall be subject to adjustment to those in effect at time of order.
  5. DELIVERY: Shipping dates given by ZEPHYR are approximate and are based on prompt receipt of information, equipment, access or receipt of generator for repair.  ZEPHYR will use its reasonable efforts to meet the scheduled dates, however, it shall not be responsible for its failure to do so for causes beyond its reasonable control and in no event shall it be liable for any loss or damage resulting from its failure to deliver the services within the time specified herein.
  6. SHIPPING/HANDLING CHARGES: Shipments are F.O.B. point of shipment. Shipping/handling will be prepaid and billed as a separate item on the equipment invoice based on ZEPHYR’s current shipping/handling policies, unless specific shipping arrangements have been agreed upon in writing.
  7. CHANGES: Customer may with the express written consent of ZEPHYR make changes in the specifications for equipment, services or work covered by the contract in such event the contract price and delivery dates shall be equitably adjusted. ZEPHYR shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for services, work and materials rendered unnecessary as a result of such changes and for work and materials required to effect said changes.
  8. CANCELLATION: Undelivered parts of any order may be canceled by Customer only with the written approval of ZEPHYR. If Customer makes an assignment for the benefit of creditors; if a voluntary or involuntary petition or action in bankruptcy or for reorganization or under any other insolvency law shall be filed by or against the Customer; if Customer shall admit its inability to pay its debts; if a trustee, receiver or liquidator is appointed for any part of the assets of Customer; or if Customer fails to make payments to ZEPHYR in accordance with the terms hereof, then ZEPHYR may at its option cancel all undelivered parts or any order by written notice to Customer. In the event of any cancellation of this order by either party, Customer shall pay ZEPHYR the reasonable cost and expense, including engineering expense and all commitments to its suppliers and subcontractors, incurred by ZEPHYR prior to receipt of notice of such cancellation, plus ZEPHYR’s usual rate of profit for similar work.
  9. ELECTRONIC ORDERS AND COMMUNICATIONS: Orders placed hereunder by Customer may be transmitted electronically by email to quotes@zwinds.com as may ZEPHYR’s acceptance and other communications between the Parties.
  10. REGULATORY LAWS AND STANDARDS: ZEPHYR makes no representation or warranty that its product, services or work will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon for compliance in writing as part of the quotation or contract between Customer and ZEPHYR. ZEPHYR prices do not include the cost of any related inspections or permits or inspection fees.
  11. EXPORT CONTROL: Products and associated materials supplied or licensed under this agreement may be subject to various export laws and regulations. It is the responsibility of the exporter, not ZEPHYR, to comply with all such laws and regulations.
  12. WARRANTY A.
    WARRANTY PERIOD: All repair, inspection, test, service, modification or maintenance sold or serviced by ZEPHYR is warranted to be free from defects of material and workmanship for the scope of work provided, and to conform to any applicable drawings, specifications, or written documents approved by the ZEPHYR for a period of time as detailed below:

1)            Reconditioned: 90 days from date of shipment.

2)            Recondition and standard rewind: 1 year in service or 18 months from date of shipment, whichever occurs first.

3)            Recondition and an additional 1- or 2- year warranty for the winding only – pricing and terms above must be adhered to and must be agreed upon at time of sale.

  1. BRUSHES & SLIP RING:
    • ZEPHYR at its discretion will install either a Mersen or a Morgan slip ring and brush assembly.  If customer wants a different brand installed it must be an approved alternate from our engineering group.
  1. STORAGE: – Longer than 6 months after delivery
    • ZEPHYR storage and maintenance specification must be followed.
    • An inspection must be performed prior to installation to check for corrosion, standstill marks on bearings and proof that the generator has been stored in a climate-controlled environment free of dust and moisture ( If generator is stored at any of ZEPHYRs facilities, all of the above will be provided free of charge if customer agrees to our storage agreement)
    • If corrosion, bearing standstill marks and generator storage climate is deemed inadequate, it will not be considered a warranty failure.
  1. NEW PRODUCT SALES: 1 year in service or 18 months from date of shipment, whichever occurs first.  OEM warranty controls.
    • The above warranties shall be based on such equipment operating with competent supervision under normal rated nameplate load, usage and conditions.  Wind turbines operating and maintenance records shall be supplied to ZEPHYR, upon request, for the above warranty period.
    • All generators installed with the extended warranty program must supply a generator install alignment report to ZEPHYR within 30 days of installation to start the generator warranty clock.
  1. WARRANTY– REPAIR, MODIFICATION, REMANUFACTURE,  If within the period specified above, ZEPHYR receives from Customer written notice of any alleged defect or non-conformity and if the services provided are found not to be in conformity with this warranty (Customer having provided ZEPHYR reasonable opportunity to perform any appropriate test thereon both up tower “field investigation” or at our repair facility, or one of our choice), then ZEPHYR will, at its option, correct such nonconformity or supply a replacement thereof. This warranty shall only apply to parts repaired or replaced by ZEPHYR within the defined scope of work. No separate warranty shall apply to repaired apparatus as a whole or to parts not repaired or replaced by ZEPHYR.  ZEPHYR shall have the right to require Customer to deliver any apparatus covered by this warranty to a designated service center and Customer shall pay both in-bound and out-bound transportation charges, ZEPHYR accepting only the direct and actual cost of apparatus repair or replacement as provided above up to the value of the previous repair on the warranted asset.  Any outage related expenses will not be reimbursed by ZEPHYR.  Additionally, the warranty for replaced assets under ZEPHYR warranty will adhere to the original warranty timeframe unless an additional warranty is purchased at the time of replacement or repair.
  2. WARRANTY – PARTS,  If any part provided by ZEPHYR shall prove defective in material and/or workmanship within the warranty timeframe from the date of shipment, then Customer shall immediately thereupon notify ZEPHYR in writing of such defect. Teller shall, at its option, modify, repair, supply a replacement part or replace of said part. ZEPHYR shall have the option to have the part returned to it, F.O.B. its factory, or to make such adjustment at the point of installation. ZEPHYR shall invoice for all travel and labor involved. ZEPHYR shall accept no responsibility if such part has been improperly operated or maintained or if Customer has permitted any unauthorized modifications, adjustments and/or repairs to the part. Parts not manufactured by ZEPHYR shall be covered by the warranty of the manufacturer or supplier thereof.
  3. WARRANTY – INSPECTION, TEST, MAINTENANCE, CALIBRATION, CONSULTATION,  ZEPHYR warrants that these services will be provided in accordance with accepted industry practice. If any service fails to meet the foregoing warranty, then ZEPHYR shall duplicate the service to the same extent and on the same conditions as the original service rendered.
  4. REMANUFACTURED EQUIPMENT/COMPONENTS:  All equipment components remanufactured by ZEPHYR will be warranted for a period of one (1) year from date of shipment. Repair of electronic boards will be warranted for a period of six (6) months from date of shipment.
  5. EXCLUSIVE WARRANTY: THESE WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY IS LIMITED TO THE ORIGINAL INVOICE AMOUNT. ZEPHYR DOES NOT WARRANT THE DESIGN OF ANY EQUIPMENT, MATERIAL, COMPONENTS OR SERVICES OF OTHERS.
  6. INDEMNITY: ZEPHYR agrees to indemnify Customer and hold it harmless from and against any proximately caused loss actually suffered directly from injury (including death) to any person or damage to any property caused solely by the fault of ZEPHYR in the performance of any work hereunder on the premises of Customer.  Notwithstanding the foregoing,
  7. PATENT INFRINGEMENT:  ZEPHYR shall defend any suit or proceeding brought against Customer so far as the same is based solely on a claim that any apparatus of ZEPHYR’s design furnished hereunder or any part thereof, constitutes an infringement of any United States patents, if notified promptly in writing and given authority, information and assistance (at ZEPHYR’s expense) for the defense of the same and if such alleged infringement is not the result of a design or other special requirement specified by Customer, or as the result of the application or the use to which such apparatus is put by Customer or others. ZEPHYR will pay all proximately caused damages and costs awarded in such suit or proceeding against Customer.  In case such apparatus or part is in such suit held to infringe any such patent and the use thereof is enjoined, then ZEPHYR shall at its expense either, at its option, (a) obtain for Customer the right to continue using such apparatus or part, or, (b) replace the same with non-infringing apparatus, or (c) modify the same so that it becomes non-infringing, or, (d) remove said apparatus and refund the purchase price and the transportation and installation costs thereof.  The foregoing states the entire liability of the ZEPHYR to the Customer for patent infringement.
  8. TITLE:  All scrap resulting from the work shall be the property of the ZEPHYR. The title and right of possession of equipment repaired, modified, inspected, tested or maintained under this contract shall remain with the Customer, subject to any applicable lien rights of the ZEPHYR and to its right of sale in the event of non-payment.
  9. DISCLAIMER OF DAMAGES:  NOTWITHSTANDING ANYTHING STATED HEREIN TO THE CONTRARRY, IN NO EVENT SHALL ZEPHYR BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER SUCH DAMAGES ARISE DIRECTLY OR VIA INDEMNITY LIABILITY STATED HEREIN. Such disclaimed damages shall include but not be limited to loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Customer’s customers or contractors for such damages. Customer agrees that in the event of a transfer, assignment, or lease of the equipment sold hereunder that Customer shall secure for the ZEPHYR the protection afforded to it in this paragraph.
  10. LIMITATION OF LIABILITY:  The ZEPHYR shall not be liable for any loss, claim, expense or damage caused by, contributed by or arising out of the acts or omissions of Customer or third parties, whether negligent or otherwise. In no event shall the ZEPHYR’s liability for any cause of action whatsoever exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as provided in Article 13 Indemnity, the ZEPHYR shall not indemnity any party.
  11. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION OR ASSISTANCE:  If ZEPHYR provides Customer with assistance or advice which concerns any parts/products/service supplied hereunder or any system or equipment in which any such part/product/service may be installed and which is not required pursuant hereto, then the furnishing of such assistance or advice shall not subject ZEPHYR to any liability, whether based in contract, warranty, tort (including negligence) or otherwise.
  12. INTERPRETATION:  Should any term or provision contained in the Services Agreement contravene or be invalid under applicable law, then this Services Agreement shall not fail by reason thereof but shall be construed in the same manner as if such term or provision had not appeared therein.
  13. ASSIGNMENT:  No Assignment.  This Agreement and any warranty associated may not be assigned by either without Customer’s prior written consent, and any such attempted assignment shall be void and of no effect.  Notwithstanding the foregoing (a) Customer shall not be required to obtain ZEPHYR’s consent for any assignment by Customer: (i) to a parent, subsidiary, or affiliate; (ii) in connection with a merger, acquisition, reorganization or consolidation; (iii) in connection with the sale of Customer membership interests or assets; or (iv) to any franchisee or licensee, so long as the assignee or the surviving entity or person agrees in writing to the obligations of Customer under this Agreement, and (b) ZEPHYR shall not be required to obtain Customer’s consent for any assignment of this Agreement to any purchaser of all or substantially all of ZEPHYR’s business, whether by stock or asset sale, merger or any other similar transaction.