A forklift lifts a pallet of materials near a white truck outdoors. The Burwell Material Handling logo is displayed on the right side over a blue-toned background.

Terms and Conditions For Services

Burwell Material Handling, LLC – Terms and Conditions for Service and Maintenance

September 25th, 2026

Applicability.  These Terms and Conditions (the “Terms”) are the only terms that govern the provision of repair, maintenance, inspection, installation, and other services (collectively, the “Services”) by Burwell Material Handling, LLC, with its principal place of business at 150 East 4th Place, #900, Sioux Falls, SD 57104 (“Service Provider”) to the party or entity receiving the Services (the “Customer”) identified in a quote, proposal, order form, service order, invoice, or other document (the “Order”). These Terms apply to every provision of Services by Service Provider to Customer. The Order and these Terms (collectively, this “Agreement”) constitute the entire agreement between Service Provider and Customer with respect to the Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, whether written or oral, relating to the Services. Customer’s execution, issuance, acceptance, or authorization of an Order, or Customer’s request for, acceptance of, or payment for any Services, constitutes acceptance of and agreement to these Terms. These Terms supersede and prevail over any additional, inconsistent, or different terms proposed by Customer in any purchase order, acknowledgment, invoice, correspondence, or other communication, and Service Provider expressly objects to and rejects all such terms. Service Provider’s acceptance of any Order, and any provision of Services, is expressly conditioned upon Customer’s assent to these Terms. Performance of Services, acceptance of any purchase order, receipt of payment, or performance by Service Provider shall not constitute acceptance of any terms proposed by Customer or modify these Terms.

 

Fees and Expenses; Payment Terms; Interest on Late Payments.  In consideration of the provision of the Services by Service Provider and the rights granted to Customer under the Agreement, Customer shall pay the fees set forth in the Order. Customer shall pay all invoiced amounts due to Service Provider no later than thirty (30) days following receipt of Service Provider’s invoice. Customer shall make all payments hereunder in US dollars by wire transfer, check, or credit card. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Service Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

 

Taxes.  Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.

 

Limited Warranty.  Service Provider represents and warrants to Customer that it shall perform the Services in accordance with customary and generally recognized industry standards for similar services. The Service Provider shall not be liable for a breach of the limited warranty set forth herein unless Customer gives written notice of the defective Services, reasonably described, to Service Provider no later than 30 days from the date that Service Provider provides the Services. Service Provider shall, in its sole discretion, either: repair or re-perform such Services; or credit or refund the applicable price of such defective Services. THE REMEDIES SET FORTH HEREIN SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION.

 

Disclaimer of all Other Warranties.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, SERVICE PROVIDER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. ANY WARRANTIES ON ANY NEW AND/OR USED PARTS, COMPONENTS, ACCESSORIES, OR MATERIALS USED IN THE PROVISION OF SERVICES (“Parts”) ARE LIMITED ONLY TO THOSE WRITTEN WARRANTIES PROVIDED BY THE APPLICABLE PART’S MANUFACTURER. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.

 

Indemnification. Customer shall defend, indemnify, and hold harmless Service Provider and its affiliates, officers, directors, employees, agents, and subcontractors from and against all third-party claims, including claims by Customer’s employees, and all resulting losses, damages, liabilities, costs, and expenses, including attorneys’ fees, arising out of or relating to (a) Customer’s ownership of its equipment, or the operation, use, maintenance, or modification of that equipment by anyone other than Service Provider; (b) Customer’s training, certification, or supervision of operators; (c) conditions at Customer’s premises; (d) Customer’s decision to decline or defer recommended work; or (e) Customer’s breach of the Agreement, negligence, or willful misconduct; except to the extent caused by the sole negligence or willful misconduct of Service Provider.

 

Limitation of Liability.  IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE AGREEMENT.

 

Waiver of Subrogation. Customer waives all claims against Service Provider for loss of or damage to Customer’s property, including the equipment being serviced, regardless of cause, to the extent such loss or damage is covered by Customer’s insurance or would have been covered had Customer maintained commercially reasonable insurance. Customer shall cause its insurers to waive all rights of subrogation against Service Provider for any such loss or damage.

 

Miscellaneous. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of South Dakota. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of South Dakota in each case located in the City of Sioux Falls and County of Minnehaha, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Any action, claim, suit, or proceeding by Customer arising out of or relating to the Agreement, the Services, or Service Provider’s performance shall be commenced no later than one (1) year after the cause of action accrues, and Customer waives any longer statute of limitations that may otherwise apply to the fullest extent permitted by law. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to law and enforced as amended. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. No waiver by Service Provider of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Service Provider. Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Service Provider. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, 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.