DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this breach of contract case is the motion for summary judgment filed by Plaintiff/Counter-Defendant Niagara Transformer Corporation ("Niagara"). (ECF No. 21). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Niagara's motion will be granted.
A. Factual Background
Except as otherwise noted, the following facts are undisputed. Defendant/Counter-Plaintiff Baldwin Technologies, Inc. ("BTI"), is a Maryland corporation that maintains its headquarters in College Park, Maryland. Niagara is a New York corporation with its principal offices in Buffalo, New York. In September 2004, the United States Government awarded BTI a delivery order to furnish and install a rotary uninterruptible power supply ("RUPS") system for Phase I of a project at the National Institute of Standards and Technology ("NIST") in Boulder, Colorado. (ECF No. 22-5, Baldwin Aff. ¶ 5). The RUPS system functioned as a back-up source of power for NIST's campus in Boulder. (ECF No. 21-2, Ex. 2, Baldwin Dep. at 11). Non-party SatCon Power Systems ("SatCon") served as a sub-contractor for BTI that, inter alia, supplied certain materials for Phase I of the project, including a RUPS unit (consisting of a generator, flywheel, and motor), as well as transformers, core reactors, and chokes. SatCon, in turn, obtained the transformers and core reactors from Niagara. ( Id. ).
In anticipation of Phase II of the project, BTI contacted SatCon in early 2006 to obtain a price quote for a second set of the materials SatCon supplied in Phase I. (ECF No. 21-1, Ex. 2, Baldwin Dep. at 20-21). On January 20, 2006, Niagara provided a quotation to SatCon ("the January Quotation") for (1) an isolation transformer, priced at $58, 393.00; and (2) an iron core reactor, priced at $68, 978.00. (ECF No. 22-6, at 1-2). The January Quotation states that shipment will occur "16-20 weeks after receipt of approved drawings." ( Id. at 2). The January Quotation attached Niagara's General Terms and Conditions of Sale. ( Id. at 3). Paragraph 2 of that document is titled "Terms of Payment" and states "[n]et cash within thirty (30) days from the date of shipment." ( Id. ). Paragraph 3 bars Niagara from being held liable "for delay in delivery due to causes beyond its reasonable control, including but not limited to, acts of God, ... floods, ... and inability due to causes beyond its reasonable control to obtain necessary labor, materials or manufacturing facilities, nor in for consequential damages." ( Id. ). Paragraph 4 is titled "Acceptance of Orders" and states that "[t]he Corporate Headquarters, located in Buffalo, New York, may only make acceptance of orders." ( Id. ). Paragraph 10 is titled "Finance Charge" and provides that "[a]ll past due accounts subject to a service charge of 1 ½% per month (18% per annum)." ( Id. ).
According to Mark Baldwin, the CEO of BTI, SatCon forwarded the January Quotation to BTI. (ECF No. 21-2, Ex. 2, Baldwin Dep., at 27-28). On January 30, 2006, BTI provided the Government with a quotation for Phase II of the project. (ECF No. 22-5, Baldwin Decl. ¶ 12). According to Mr. Baldwin, this quotation included an estimated completion date for Phase II based on the delivery timeframe provided by Niagara in the January Quotation. ( Id. ¶ 13).
Later in February, SatCon requested that BTI work directly with Niagara regarding the purchase of the equipment needed for Phase II. (ECF No. 21-2, Ex. 2, Baldwin Dep. at 24-25). On February 27, 2006, Niagara provided a quotation directly to BTI ("the February Quotation") for (1) an isolation transformer, priced at $58, 393.00; and (2) an iron core reactor, priced at $68, 978.00. (ECF No. 21-2, Ex. 3). The February Quotation states that shipment will occur "30 weeks after receipt of purchase order" and makes no mention of drawings. ( Id. ). Like the January Quotation, the February Quotation attached Niagara's General Terms and Conditions of Sales.
After the Government awarded BTI the delivery order for Phase II of the project, BTI sent a purchase order directly to Niagara on March 15, 2006. (ECF No. 21-1, Ex. 4). The purchase order requests the following: (1) one "E-Switchgear, " described as "Item #1 per attached letter dated January 20, 2006" at a rate of $58, 393.00, plus $1, 705.00 for freight; and (2) one "E-Switchgear, " described as "Item #2 [per attached letter], " at a rate of $68, 978.00, plus $1, 705.00 for freight. ( Id. ). In the column titled "Expected, " the purchase order states "7/5/2006." ( Id. ). The purchase order attached the January Quotation.
On March 16, 2006, Niagara sent a fax to BTI stating that "[w]e acknowledge and thank you for your Purchase Order 3775-1170" and that "[p]lease note per my February 27, 2006 quotation our delivery is out to 30 weeks A[fter] R[eceipt of] O[rder] for this equipment." (ECF No. 21-2, Ex. 5). On April 3, Niagara sent BTI an acknowledgement form, which lists an estimated ship date of October 13, 2006. (ECF No. 21-2, Ex. 6). Mr. Baldwin, however, does not recall receiving any indication that Niagara would be unable to meet a July delivery date until sometime later in April. (ECF No. 21-2, Ex. 2, Baldwin Dep. at 32-33). Mr. Baldwin avers that, in early April 2006, Niagara informed him that its "efforts were being diverted to supplying equipment in support of the Hurricane Katrina recovery efforts." (ECF No. 22-5, Baldwin Decl. ¶ 18). At that time, BTI revised its schedule for Phase II to account for an October delivery date and communicated a new estimated completion date of November 30 to the Government. (ECF No. 21-2, Ex. 2 Baldwin Dep. at 33-34).
On May 11, 2006, Niagara faxed BTI a copy of its credit application and included a cover page advising that that "it had not been able to improve from the October [delivery] date" but "would continue to expedite." (ECF No. 22-10, at 1). That same day, Mr. Baldwin, on behalf of BTI, signed and completed the credit application. (ECF No. 21-2, Ex. 7). Directly above his signature, the credit application states that "[c]ustomer agrees to pay reasonable collection and attorney costs for any past due amounts that are placed for collection." ( Id. at 74).
In a letter dated November 6, 2006, Niagara advised BTI that the Buffalo area had received an early winter storm that caused extensive power outages and flooding. (ECF No. 21-2, Ex. 9). Niagara further advised that its plant was without power from October 12 through October 17 and that, even once its power was restored, many employees were unavailable to work. ( Id. ). Niagara explained that this situation, combined with "a very full schedule, " meant that delivery of BTI's order "will be delayed to the end of November." ( Id. ). Niagara represented that "we are working around the clock to try and reduce this shipping delay as much as we can as quickly as we can." ( Id. ).
In a separate letter also dated November 6, 2006, Niagara advised that it had "been experiencing several delays on this project, " including certain delays caused by the specialized core reactor's requirements. (ECF No. 21-2, Ex. 10). The letter stated that "[p]resently we are looking at the third week of December for a ship date" and that "[we] will be happy to talk with your customer to reiterate that the order delay is due to production problems at [Niagara] and not the cause of [BTI]." ( Id. ). According to Mr. Baldwin, Niagara contacted BTI via telephone in late November 2006 to explain that it had experienced another setback because of a roof collapse in its manufacturing facility. (ECF No. 22-5, Baldwin Decl. ¶ 28). Mr. Baldwin also avers that, on November 22, 2006, Niagara informed BTI that the delivery date would be pushed back again to the third or fourth week of December. ( Id. ¶ 29).
Mr. Baldwin represents that, during this time period, the Government repeatedly notified BTI that it was dissatisfied with "the missed delivery dates" and asked BTI for certain concessions. (ECF No. 22-5, Baldwin Decl. ¶ 31). BTI provided some of the requested concessions, at its own expense, including by designing new access doors and by relocating certain electrical equipment. ( Id. ¶ 33).
Niagara ultimately shipped the equipment on December 18, 2006. BTI received the equipment on December 25, 2006, approximately forty-five (45) weeks after BTI submitted its purchase order. (ECF No. 21-2, Ex. 2, Baldwin Dep., at 137). At that time, work on Phase II of the project had stopped for the winter and would not resume until March 2007. BTI eventually installed the Niagara equipment in April 2007. ( Id. at 80-81). It is undisputed, however, that ...