Controlling Provisions: These terms and conditions shall supersede
any provisions, terms, and conditions contained on any purchase order or other
written form Buyer may use or provide (whether received by Seller prior or subsequent
to the date hereof), and the rights of the parties shall be governed
exclusively by the provisions, terms, and conditions hereof.
Quotations and Acceptance: Acceptance of a quotation, whether by a
separate purchase order or by other means, shall constitute an acknowledgement
and approval of the quotation as written and an acceptance of the Terms and
Conditions hereof. Written quotations
shall expire on the date specified in the quotation or, in the absence of such
specification, thirty calendar days from the date issued. Seller may, by written notice, terminate a
quotation at any time prior to acceptance.
Any purchase order received after expiration of a quotation, which
Seller honors, shall be subject to all of the Terms and Conditions hereof.
Submittal Drawings: Submittal of drawings for approval, if
required, will be made after receipt of complete information from Buyer. The quantity of the submittal drawing sets
will be specified in the contract documents.
Additional sets will be supplied at $300.00 per set. Return to Seller of two (2) final approved
drawing sets constitutes notice to Seller to proceed with manufacturing. If Buyer’s order is conditioned upon
“engineer approval” Seller requires written notification from Buyer in the form
of approved submittal data.
Intellectual Property: All software to be developed, devices,
designs (including drawings, plans and specifications), estimates, prices,
notes, electronic data and other documents or information prepared or disclosed
by Seller shall remain the sole intellectual property of Seller. Following acceptance and final payment,
Seller shall grant to the Buyer a non-transferable, non-exclusive license to
use such material for the Buyer’s internal purposes only.
Force Majeure: Seller shall not be liable for failure to
deliver or perform, for any delay in the performance of orders or contracts, or
in the delivery of shipment of goods, or for any damage suffered by the Buyer
due to such delay or failure, when the delay or failure is, directly or
indirectly, caused by or arises from delays of suppliers or carriers or any
other cause beyond Seller’s control.
Prices and Taxes: All project prices are “F.O.B. Shipping
Point, Freight Allowed to Jobsite” unless expressly stated otherwise. In other words, Seller shall pay for the
freight to Buyer’s project site; however Buyer shall bear all risk of loss
while items are in transit. Non-project
or replacement parts are shipped pre-paid and added to any service related
invoices. Prices do not include sales, excise, municipal, state, or any other
governmental taxes. Buyer shall be
responsible for all taxes.
Credit Approval: The credit terms specified on the face hereof
are subject to Seller’s continuing approval of Buyer’s credit. Seller may withdraw the extension of credit
and require modified payment terms if, in Seller’s sole judgment, Buyer’s
credit or financial standing is impaired to the point where Seller in good
faith deems itself insecure.
Title, Risk of Loss, Inspection of
Equipment: Title and risk of loss to the equipment shall
pass to Buyer upon delivery of the equipment to the carrier. Buyer shall immediately inspect equipment
upon receipt and any damage must be noted on the carrier’s bill of lading at
time of receipt. Seller is not liable
for any shortages or nonconformance unless notified by Buyer within three(3)
business days of Buyer’s receipt of the equipment.
Changes, Cancellations, Returns: All changes, cancellations, or returns must
have Seller’s prior written approval and are conditional on compliance with
manufacturer’s cancellation/return policies and subject to restocking fees and
service charges. Authorized returned
equipment must be packaged and shipped prepaid to manufacturer.
Payment: Buyer shall pay Seller the full purchase
price as set forth in Seller’s Documentation.
Unless Seller’s Documentation provides otherwise, freight, storage,
insurance and all taxes, duties or other governmental charges relating to the
Equipment shall be paid by Buyer. If
Seller is required to pay any such charges, Buyer shall immediately reimburse
Seller. All payments are due within 30
days after receipt of invoice. Buyer
shall be charged the lower of 1 ½% interest per month or the maximum legal rate
on all amounts not received by the due date and shall pay all of Seller’s
reasonable costs (including attorney’s fees) of collecting amounts due but
Indemnification and Default: In addition to all other amounts due
hereunder, Buyer shall reimburse Seller in full for all collection costs or
charges, including reasonable attorney fees, which Seller may incur in the
collection of past due amounts from Buyer, including interest on overdue
accounts. If Buyer is in default under
this or any other agreement with Seller, Seller may defer performance hereunder
until such default is cured. Seller
shall have no obligation to provide factory startup assistance and or factory
training until all invoices (including retentions) for equipment have been paid
in full. Furthermore, Seller shall have
no liability to Buyer to the extent Buyer damages, or any damages are suffered
by, or claims are made against Buyer as a result of Buyer’s negligence, willful
misconduct, misrepresentation of any products or equipment, or failure to
utilize products or equipment properly.
Security Interest: Seller shall retain a security interest in
the equipment until the full purchase price has been paid. Buyer’s failure to pay any amounts due shall
give Seller the right to possession and removal of the equipment after
providing ten (10) days written notice, Seller’s taking of such possession
shall be without prejudice to any other remedies Seller may have.
Warranty and Liability: Buyer shall have such warranty rights, and
other such warranty rights, only as may be extended by the original
manufacturer of the individual products.
The terms and conditions of any such warranty rights are set forth in
the Manufacturer’s Operations/Maintenance Manual which accompanies each
product. These Warranties do not cover anything
considered an “Act of God”. An “Act of God”, is so extraordinary and devoid of
human agency that reasonable care would not avoid the consequences. Damages
caused by tornadoes, lightning and subsequent utility power supply power surges or variances, perils of the sea, extraordinary floods, fallen
trees and severe ice storms are usually considered “Acts of God”. Seller does not otherwise offer any guaranty or warranty for
the products or assemblies.
disclaims any and all warranties, express or implied, including the warranties
of merchantability and fitness, except as may be set forth in the terms and
conditions of sale in this Agreement or in any express written warranty which
Seller may have otherwise extended to Buyer.
To the extent a limited warranty is extended from Seller it shall begin
to run from the date of substantial use of the equipment or substantial
completion of the project, whichever occurs sooner in time. All warranties shall be immediately voided if
anyone other than a Seller’s employee or authorized representative makes any
changes, additions, deletions, or adjustments to the products, software and
computers provided by Seller.
shall not be liable for any damages, charges for labor, or expense in making
repairs or adjustment to the product without prior written approval of
Seller. Seller shall not be liable for
any damages or charges sustained in the adaptation or use of the engineering
data or service by Buyer or any third party.
Seller shall not be liable for start-up or any other field work
performed by personnel other than authorized representatives of Seller unless
expressly approved in writing in advance by Seller. Seller shall in no event be liable for any
consequential, incidental or liquidated damages or penalties. Seller’s liability under this Agreement shall
in no event exceed the lesser of (i) the cost of remediating any defect or
deficiency in the performance of Seller hereunder, or (ii) the purchase price
of the product in respect of which the claim is made.
Operations/Maintenance Manuals: Buyer’s installation, maintenance and
operation manuals will be furnished in the number of copies specified at the
time of quotation in contract documents.
If none specified, one will be provided at no added cost, with
additional copies at $300.00 each.
Applicable Law and Forum: All disputes between Buyer and Seller shall
be venued in Hennepin County District Court in the State of Minnesota. Buyer agrees to submit to such jurisdiction
and agrees that the dispute shall be governed by Minnesota Law.