TERMS AND CONDITIONS
EXHIBIT A
1. SCOPE: Unless otherwise specifically provided by separate agreement duly signed by Seller, the terms and conditions specified below constitute the entire agreement between Seller and Buyer and no other terms or conditions will be of any effect. Any additional or different terms or conditions contained in Buyer’s order or other documentation will be deemed objected to by Seller and will be of no effect.
2. PRICES and ORDERS: Published DOMESTIC PRICE LISTS and specifications are subject to change without notice. Prices quoted in written proposals, however, are effective for a period of thirty (30) days from the date on the proposal. All prices are stated f.o.b. shipping point(s) designated by Seller and are payable in U.S. Dollars. Buyer’s hard copy order is required. Orders will be subject to acceptance by Seller, including final credit approval by Seller. Orders are priced individually and quantities are not cumulative.
3. DOMESTIC PAYMENT TERMS: Terms of payment – net thirty (30) days after shipment on approved credit. Invoices will be issued upon shipment. Past due invoices are subject to a monthly service charge of one-and-one-half percent (1 ½%) or if less, at the maximum rate permitted by applicable law. If Buyer defaults on the terms of payment of any invoice, or if the financial responsibility of Buyer becomes impaired or unsatisfactory in the sole judgment of Seller, Seller reserves the right to change terms of payment and/or defer or discontinue further shipments, without prejudice to any other lawful remedy, until past due payments are made and satisfactory assurance of Buyer’s credit standing is received. Seller further reserves the rights of stoppage of shipments in transit and repossession of equipment not paid for in Buyer’s possession, and Buyer agrees to enter into such security agreements, UCC financing statements and other documents reasonably requested by Seller to enable Seller to effectively exercise, perfect and protect such rights. Buyer will be liable for all court costs, legal fees and other expenses incurred by Seller in collecting past due amounts hereunder.
4. TAXES: Prices do not include local, state and federal taxes or duties. Consequently, in addition to any prices specified, the amount of any present or future sales, use, or similar tax or duty applicable to the sale of the goods and merchandise herein or to the use of such goods and merchandise by Buyer will be paid by Buyer, or in lieu thereof, Buyer will furnish Seller with a tax exemption certificate acceptable to the taxing authorities.
5. PACKING and TRANSPORTATION: Prices include products packed for commercial air freight transportation only. At Buyer’s request, or when in Seller’s opinion Buyer’s specified method of transportation could be harmful to the equipment if packed as provided above, the expense of special crating or packing, with Buyer’s approval, will be invoiced to Buyer. Shipments will be freight collect, prepaid and billed to Buyer, or charged to Buyer’s freight account with a carrier to be designated by Buyer.
6. INSURANCE: If so requested by Buyer on Buyer’s purchase order, Seller will insure all shipments at full value. All insurance charges will be billed to Buyer . Any return of equipment by Buyer to Seller, whether it be under Seller’s warranty or not, must be fully insured by Buyer at expense of Buyer. Seller accepts no responsibility for Buyer’s equipment when it is at Seller’s facilities, except to the extent coverage is available under Seller’s casualty insurance. Failure to insure or the failure of an insurer to settle Buyer’s claim will not result in any liability to Seller.
7. DELIVERY: Delivery will be f.o.b. Seller’s designated shipping point. Buyer assumes all risks of loss upon delivery to the carrier at point of shipment. Buyer assumes full responsibility for negotiating with the carrier or insurer or both in the event of misdelivery, loss or damage regardless of the fact that insurance and transportation may have been secured by Seller. Seller will not be liable for any delay in delivery but will exert its best effort to meet agreed to delivery dates.
8. TITLE: Except as otherwise agreed to in writing, title to the goods or any part thereof will pass from Seller to Buyer as soon as all payments due herein have been fully made in cash. The goods shall be and remain personal property, notwithstanding their mode of attachment to realty or other property. If default is made in any of the payments herein, Purchaser agrees that Seller may retain all payments which have been made on account of the price up to 50% of the purchase price, as liquidated damages and seller shall be entitled to the immediate possession of the goods and shall be free to enter the premises where the goods maybe located and remove such goods as Seller’s property, without prejudice to Sellers’ right to recover any further expenses or damages Seller may suffer by reason of such non-payment, Seller has the right to take whatever actions are necessary to perfect a security interest in the equipment.
9. DOMESTIC INSTALLATION/TRAINING: Unless specifically included as part of a written proposal, on site installation or training is not included. Such assistance, if desired can be contracted for separately at prevailing rates. Introductory training of Buyer’s personnel at Seller’s facility is normally offered at no charge as a customer accommodation unless otherwise specified or determined.
10. DOMESTIC WARRANTY: SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR PARTICULAR PURPOSE, REGARDING THE EQUIPMENT AND SELLS IT AS IS, EXCEPT THAT SELLER DOES WARRANT EQUIPMENT OF ITS OWN MANUFACTURE AGAINST DEFECTS IN MATERIALS AND WORKMANSHIP FOR 12 MONTHS FROM INSTALLATION OR 13 MONTHS FROM FIRST SHIPMENT BY SELLER, WHICHEVER COMES FIRST. ON ALL EQUIPMENT OR PARTS NOT OF SELLER’S MANUFACTURE, SELLER WILL EXERT ITS BEST EFFORTS TO OBTAIN FOR BUYER THE BENEFITS OF THE WARRANTY ISSUED BY THE MANUFACTURER. SELLER’S WARRANTY DOES NOT APPLY TO ANY EQUIPMENT WHICH HAS BEEN ALTERED BY OTHER THAN SELLER’S AUTHORIZED SERVICE OR TECHNICAL PERSONNEL. EQUIPMENT WHICH, UPON INVESTIGATION BY SELLER, PROVES TO BE DEFECTIVE IN ACCORDANCE WITH THE PROVISIONS OF THIS WARRANTY WILL BE REPAIRED OR REPLACED BY SELLER AT NO COST TO BUYER. PRODUCTS FOR REPAIR OR EXAMINATION MUST BE RETURNED TO SELLER ONLY AFTER RECEIVING AUTHORIZATION FROM SELLER TO RETURN THEM. ALL SHIPMENT EXPENSES TO AND FROM SELLER’S FACILITY ARE TO BE BORNE BY BUYER, EXCEPT THAT ITEMS REPAIRED UNDER WARRANTY WILL BE RETURNED TO BUYER WITH SHIPPING CHARGES PREPAID BY SELLER. FIELD SERVICE IS NOT COVERED BY THE WARRANTY AND ON SITE WORK NECESSARY BY SELLER’S SERVICE OR TECHNICAL PERSONNEL TO DETERMINE THE CAUSE OF NON-PERFORMANCE IS BILLABLE TO BUYER AT PUBLISHED RATES. BUYER’S EXCLUSIVE REMEDY AND SELLER’S SOLE LIABILITY ON ANY CLAIM, WHETHER TORT, CONTRACT OR WARRANTY, WILL BE LIMITED TO SELLER REPAIRING OR REPLACING, AT ITS OPTION, ANY DEFECTIVE EQUIPMENT. SELLER WILL IN NO EVENT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND SPECIFICALLY, BUT NOT IN LIMITATION THEREOF, SELLER WILL NOT BE LIABLE FOR INJURY TO PERSONS (INCLUDING DEATH) OR DAMAGE TO PROPERTY (INCLUDING MATERIALS USED IN CONNECTION WITH THE EQUIPMENT) OCCASIONED BY OR GROWING OUT OF INSTALLATION, REMOVAL OR USE OF THE EQUIPMENT.
11. ACCEPTANCE: Equipment will be deemed accepted unless rejected within ten (10) days after delivery to Buyer.
12. PATENTS: If the design (including both hardware and software) of the equipment ordered hereunder originates with Seller, Seller will hold Buyer harmless and defend Buyer, Buyer’s customer and all persons claiming under Buyer, against any suit or suits for alleged infringement of any copyright or patent and will indemnify Buyer against all damages to the extent of the purchase price of the equipment arising therefrom by reason of the manufacture, use or sale of the equipment covered by the Purchase Order, provided, however, that Buyer promptly notifies Seller of any suit or threat thereof and authorizes Seller to conduct and control the defense, and that the infringement is solely attributable to the design of Seller’s equipment without connection to or use with other equipment.
13. SEVERABILITY: In the event that any of the Terms and Conditions are in conflict with any rule of law or statutory provisions of any government or subdivision thereof, such terms will be deemed amended to conform to such provisions, or if they cannot be so amended without materially altering the intentions of the parties, they will be stricken without invalidating any of the remaining Terms and Conditions, which will continue in force.
14. WAIVER: No failure or delay on the part of a party in exercising any right hereunder will operate as a waiver of, or impair, any such right. No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right will be effective unless given in a signed writing. No waiver of any such right will be deemed a waiver of any other right hereunder.
15. FORCE MAJEURE: Neither Buyer nor Seller will be liable for any delay or failure to perform due to any contingency beyond its control. Should such inability continue for more than 90 days after written notice is given to the other party by the party requesting relief for non performance, the other party may terminate any and all orders without liability.
16. GOVERNING LAW: This Agreement will be construed in accordance with and governed by the laws of the State of Minnesota applicable to agreements made and to be performed in such jurisdiction without reference to conflicts of law principles.
(End of Terms and Conditions)