Standard Terms & Conditions
Goods and services covered by this order are being sold only in accordance with the terms and conditions contained herein and in Seller’s quotation or acknowledgment if any. Seller offers to sell the goods or services described herein only upon the terms and conditions contained herein. The offer shall be deemed accepted and shall become a binding contract on the terms and conditions contained herein: (a) when Buyer issues its oral or written acknowledgment, (b) when Seller commences performance, or (c) when Buyer otherwise accepts the offer. By accepting the offer, Buyer waives all terms and conditions contained in Buyer’s purchase order or other documents which are different from or additional to those contained herein (whether or not Buyer sends its documents before or after Seller sends this form), and all such different or additional terms and conditions shall be null and void and of no effect.
- Shipping allowances and prices are subject to change by Seller with notice. Increases in labor, freight and material costs before completion of contract plus applicable overhead may be invoiced to Buyer.
- Delivery or Performance. Unless otherwise specified in Seller’s offer, all deliveries are F.O.B. point of shipment. Shipment will be made in accordance with instructions issued by Seller. Shipping, delivery or performance dates are approximate and are not guaranteed. Seller reserves the right to ship and invoice for a quantity of goods which may vary up to ten percent over or under the quantity specified where applicable. Buyer agrees to accept delivery and pay for such revised quantity and consider the shipment to be complete. Partial deliveries shall be accepted by the Buyer and paid for at contract prices and terms. Buyer shall have no right to delay the delivery or shipment date.
- Force Majeure. Seller shall not be liable for any delay or other failure to performance due to causes beyond its reasonable control, including without limitation acts of God, acts of Buyer, acts of military or civil authorities, terrorism, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, delays in transportation, or inability to obtain necessary products, goods, materials, components, equipment, services, energy or utilities through Seller’s usual and customary practices. In any such event, Seller may, with notice to Buyer, at any time and from time to time without further liability to Buyer: (a) postpone its performance under this contract, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not affect Seller’s right to payment for performance of any other part hereof.
- Warranty and Remedy. Seller warrants to Buyer, for a period of thirty (30) days from the date of shipment and/or performance or services, that its services hereunder are performed in a good and workmanlike manner and that goods delivered hereunder, under proper and normal use, are free from material defects in materials and workmanship, except that materials and services furnished by Seller’s suppliers or subcontractors are warranted by Seller only to the extent of the supplier’s or subcontractor’s express warranty to Seller. If during such period Buyer promptly notifies Seller in writing of any breach of such warranty and complies with any applicable warranty procedures of Seller, Seller shall thereupon, at Seller’s option, re-perform services, repair or replace any defective goods at Seller’s plant or refund the price of the goods or services or part thereof which gives rise to the claim. Seller shall make no allowance for repairs or alterations made by Buyer unless made with Seller’s prior written consent. The foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of Seller for any breach of warranty. The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral or implied, including any warranty of performance, merchantability or fitness for particular purpose, (and supersedes and excludes any oral warranties or representations or written warranties or representations, not expressly designated in writing as a “warranty” or “guarantee” of Seller, made or implied in any manual, literature, advertising brochure or any other materials). All warranties of merchantability and fitness for a particular purpose are hereby disclaimed. No warranties may be assigned to any subsequent Purchaser or user of the goods or services without prior written notice and approval by Seller.
- Limitation of Seller’s Liability. Seller’s liability on any claim with respect to the goods or services which are the subject of this contract shall in no case exceed the price of the goods or services or part thereof which gives rise to the claim. In no event shall Seller be liable for any special, incidental or consequential damages or for damages in the nature of penalties.
- Buyer’s Use. Buyer agrees that it is solely responsible for determining the suitability of any services and goods including all parts and components of the goods purchased from Seller and that it is not relying on Seller in making such determination. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use.
- Limitation of Actions. Any action for any loss or damage with respect to the goods or services which are the subject of this contract must be commenced by Buyer within six (6) months from the date of delivery of goods or services or such claim shall be forever barred.
- Indemnification and Waiver. Buyer shall defend, indemnify and hold harmless Seller from any cost, loss or damage sustained by Seller and from and against all claims asserted against Seller with respect to the goods or services which are the subject of this contract including but not limited to that arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including but not limited to, the Occupational Safety and Health Act and any other applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Buyer, its agents, employees or customer including use of goods with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its agents, employees or customer, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyers designs, plans, or specifications, (g) from any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance, repair or operation of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Sellers gross negligence.
- All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods (other than income taxes) are not included in the price and shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith.
- Advice and Assistance. Seller in its discretion may furnish as an accommodation to Buyer technical advice or assistance regarding the goods or services. Seller assumes no obligation or liability for the advice or assistance given or results obtained, which shall be at Buyer’s sole risk.
- Buyer’s Materials. All of Buyer’s tooling, goods and other property in Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such material caused by Sellers negligence or otherwise.
- Seller’s Proprietary Rights. Seller shall be the sole owner of all drawings, inventions or improvements made by or for Seller in connection with the performance of this contract. Buyer shall not reproduce any drawing furnished by Seller. Buyer shall not use or disclose any of Sellers’ trade secrets or confidential information, whether or not designated as such, except as required in connection with the use or resale of the goods or services covered by this contract.
- Security Agreement, Credit and Collection. To secure payment of all sums due hereunder or otherwise, Seller shall retain a security interest in the goods delivered hereunder and this contract shall be deemed a Security Agreement under the Uniform Commercial Code. Buyer authorizes Seller as its attorney to execute the file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. Seller is relying upon Buyer’s representation of solvency and if Seller at any time reasonably believes that Buyer is insolvent or that Buyers credit is impaired, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance hereunder, change the payment terms and/or repossess the goods theretofore delivered. Title to the goods covered by this contract shall remain the Sellers until payment in full is received. In extending any credit hereunder, Buyer shall pay to Seller interest on the unpaid amount at the maximum annual rate permitted by law or 1-1/2% per month, whichever is less and if Buyer fails to pay according to the terms of this contract, Seller may make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all costs of collection including attorney’s fees and court costs.
- Buyer’s Financial Responsibility. If Seller shall at any time doubt Buyers financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming with 10 days after the date of Sellers demand, Seller may at its option (1) continue to defer further shipments under this order and/or any other order from Buyer which has been accepted by Seller until adequate assurances are received or (2) cancel this order and any other order from Buyer which has been accepted by Seller and recover damages. Any amounts past due are subject to interest and penalty of 1.5% per month or the highest amount allowed by law. Such interest shall be determined by the Seller and paid by the Buyer.
- Seller’s offer together with these Standard Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the goods or services which are the subject hereof. No modifications shall be binding upon the Seller unless in writing signed by Seller’s duly authorized representative. If any term or provision of this contract shall to any extent be invalid or unenforceable, the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance. To the extent any term contained in Seller’s written offer differs from a term in these Standard Terms and Conditions, the terms set forth in Seller’s written offer shall control.
- Choice of Law and Jurisdiction. These terms and conditions shall be construed in accordance with the laws of the State of Minnesota, without regard to principles governing conflicts of laws. Buyer and Seller consent to the jurisdiction and venue of the federal and state courts situated in or having their situs over Minneapolis, Minnesota.
- Attorney’s Fees. If Seller pursues any legal action to enforce any of its rights, Seller shall be entitled to recover from Buyer all reasonable attorney’s fees, any arbitration costs, and all other costs and expenses incurred by Seller in connection with such action. Any and all fees associated with collection efforts shall be paid by Buyer.