TERMS & CONDITIONS OF SALE (Rev. 11/2018)
1. AGREEMENT AND ACCEPTANCE. The terms and conditions of Sale set forth herein and in the order acknowledgement, along with any non-disclosure agreement executed between Twin City Clarage, LLC (“Seller”) and the buyer of Seller’s products (“Buyer”) shall constitute the entire agreement (“Agreement”) between Seller and Buyer and supersedes all other agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. Seller’s acceptance of any offer by Buyer is expressly made conditional upon Buyer’s assent to the terms and conditions hereof, and none of Buyer’s additional or different terms shall apply. Acceptance of Seller’s offer to sell is expressly limited to acceptance of the terms and conditions hereof, and no other terms or conditions in a purchase order or other document shall apply, unless expressly agreed to by Seller in writing. In the event of a conflict between these terms and any other documents with respect to an order or the parties’ respective obligations, the terms will control in the following order of precedence: (a) the terms of any non-disclosure agreement that is mutually executed by the Buyer and Seller; (b) Seller’s written acknowledgment of a purchase order specifically accepting the Buyer’s terms and conditions subject to revisions in Seller’s acknowledgement letter; (c) these terms and conditions; and then (d) the custom portions of a purchase order (for clarity, not including any boilerplate or standard terms included therein). Seller may subcontract the furnishing of any products sold hereunder or any portion thereof.
2. ORDERS; CHANGES. No order shall be valid until accepted by Seller at its office in Minneapolis, Minnesota. U.S.A. After acceptance by Seller, Buyer’s order shall not be subject to cancellation, change or reduction in amount nor to any suspension by Buyer of deliveries except as provided in Section 13 below or with Seller’s prior written consent. Buyer acknowledges that Seller engages in continuous product improvement and makes changes to its products from time to time. The Seller reserves the right to make reasonable changes and use substitute parts or products as long as such substitutions perform equal to, or better than the original product or part thereof, and shall have the right to deliver revised designs or models and such substitute products or parts against any order.
3. PRICE. All prices exclude federal, state, or local taxes, customs, duties, charges, consular fees, permit and license fees and any other taxes, fees or expenses which shall be added to the applicable invoices and paid by Buyer. In the event Seller has the legal obligation to collect and remit any taxes, Buyer has the obligation to pay such amounts or, if eligible, provide to Seller in a timely manner any exemption certification acceptable to the authority imposing the applicable tax. Prices quoted are firm for the products and quantities specified for thirty (30) days unless extended in writing by Seller and remain firm provided Buyer, within 120 days of acceptance of purchase order, releases Seller to manufacture and ship the goods. Prices may increase as a result of delays due to changes requested by Buyer or Buyer’s failure to furnish information requested. Further, any additions to an outstanding order will be accepted only at the prices then in effect when the additional order is accepted by Seller. Seller reserves the right to charge at any time a monthly service charge of one and one-half percent (1½%) or the highest rate allowed by law, whichever is lower, on accounts outstanding more than thirty (30) days from the date of Seller’s invoice, effective as of the thirty-first (31st) day from the date of the invoice.
4. PAYMENT TERMS. If Seller has extended credit to Buyer, payment shall be due net thirty (30) days after date of Seller’s invoice. The amount of credit may be changed and/or credit withdrawn by Seller, at any time in Seller’s sole discretion. Without limitation, prior to delivery Seller may require payment in cash with order or an irrevocable letter of credit in favor of Seller in an amount sufficient to cover the price of products and all related expenses which are for Buyer’s account, and which includes all costs of collection, including reasonable attorney’s fees, shall be borne by Buyer. If Buyer delays shipment or delivery, payment shall not be delayed and shall be due when Seller is ready to make the shipment or delivery. Unless otherwise set forth on the face of this Agreement, all payments shall be made in U.S. dollars. Seller’s right under this Section shall be in addition to all other rights and remedies provided by law or in equity upon Buyer’s default.
5. DELIVERY TERMS; RISK OF LOSS. Unless otherwise stated on the face of this Agreement, all deliveries shall be FCA (Free Carrier) Seller’s factory (Incoterms 2010). Risk of loss shall transfer to Buyer at the Seller’s factory. All delivery expenses, including transportation, freight, insurance, and any other shipping costs, and risk of loss during delivery and transportation, shall be borne by, and for the account of, Buyer. Seller will not be responsible for any loss, damage or delay caused by the carrier and any claims for damages in transit must be assessed by Buyer against the carrier. Unless otherwise instructed, selection of carrier and routing of all shipments shall be at Seller’s discretion. All boxing and packaging charges for sales shall be added to the price. When special packaging is specified for domestic or export sales involving greater expense than that customarily supplied, a charge may be made to cover such extra expense. Shipment dates are approximate and are subject to receipt of all necessary Buyer information, letter of credit, if required, and all necessary licenses, permits and other documents. Seller will attempt to meet the requirements of Buyer’s delivery schedule and shall not be in default of performance due to a delay of reasonable duration resulting from any cause. Seller shall not be liable for any damages, costs or expenses resulting from late delivery.
6. INSPECTION AND ACCEPTANCE. Buyer must inspect delivered products and report claims for damages or shortages in writing within ten (10) days of delivery or the products shall be deemed irrevocably accepted and such claims are hereby waived.
7. SAFETY. Buyer assumes full responsibility and liability for the purchase, installation, use and maintenance of guard railing and safety mechanisms with the products in accordance with Seller’s product documentation and as may be further required for Buyer’s specific uses and facilities as identified and determined by Buyer in accordance with all applicable regulatory requirements and industry standards.
8. LIMITED WARRANTY AND REMEDIES. Seller warrants to the original purchaser that the products sold hereunder shall be free from defects in workmanship and material upon delivery under normal use and service (except in those cases where the materials are supplied by Buyer) for a period of one year from the date of original installation or eighteen (18) months from the date of shipment, whichever occurs first. The liability of Seller under this warranty is limited to replacing, repairing, or issuing credit (at cost, FCA factory and at Seller’s discretion) for any part or parts which are returned by Buyer during such period provided that (a) Seller is notified in writing within ten (10) days following discovery of such defects by Buyer, or within ten (10) days after such defects should reasonably have been discovered, whichever is less, (b) the defective unit is returned to Seller, transportation charges prepaid by Buyer, (c) payment in full has been received by Seller for said products, (d) Seller’s examination of such unit shall disclose to Seller’s satisfaction that such defects have not been caused by misuse, neglect, improper installation, repair, unauthorized modification, Buyer’s design, alteration, act of God, or accident. No warranty made hereunder shall extend to any Seller’s product whose serial number is altered, effaced or removed. WITH THE EXCEPTION OF THE EXPRESS WARRANTY IN THIS SECTION 8, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE PRODUCTS SOLD AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SUITABILITY FOR A SPECIFIC APPLICATION FOR WHICH PRODUCTS ARE USED OR WITH RESPECT TO THE DESIGN OR OPERATION OF AN ENTIRE SYSTEM IN WHICH SELLER’S PRODUCTS ARE COMPONENTS, NOR DOES SELLER MAKE ANY WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO MOTORS, SWITCHES, CONTROLS, OR OTHER COMPONENTS OF SELLER’S PRODUCT, WHERE SUCH COMPONENTS ARE WARRANTED SEPARATELY BY THEIR RESPECTIVE MANUFACTURERS. FURTHER, SELLER EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY DAMAGES, COSTS OR EXPENSES RESULTING FROM LATE DELIVERY OF PRODUCTS OR ANY COMPONENTS. Repair or replacement of the products sold hereunder, or refund of the purchase price as provided in this warranty, is the Buyer’s exclusive remedy. All costs of dismantling, reinstallation and freight and the time and expenses of Seller’s personnel for site travel and diagnosis under this warranty shall be borne by Buyer unless accepted in writing by Seller. This exclusive remedy will not be deemed to have failed its essential purpose so long as Seller is willing and able to repair or replace any defective product or refund the purchase price, in the prescribed manner. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. BUYER’S FAILURE TO PAY THE FULL AMOUNT DUE WITHIN SIXTY (60) DAYS OF DATE OF INVOICE SHALL OPERATE TO RELEASE SELLER FROM ANY AND ALL LIABILITY OR OBLIGATION ARISING PURSUANT TO ANY WARRANTY, EXPRESSED OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, MADE IN CONNECTION WITH ANY TRANSACTION HEREUNDER. BUYER AGREES THAT SUCH FAILURE TO PAY SHALL CONSTITUTE A VOLUNTARY WAIVER OF ANY AND ALL SUCH WARRANTIES ARISING PURSUANT TO SUCH TRANSACTION. Any repair or attempt to repair products by anyone other than an authorized representative of Seller automatically voids any warranty of those products. Any oral or written statement concerning the products inconsistent with the warranty contained herein shall be of no force or effect.
9. INDEMNIFICATION. To the maximum extent allowed by law, Buyer shall indemnify and hold harmless Seller and its directors, officers, employees, and sales agents (the “Indemnitees”), from and against any and all government actions or third party claims, losses, damages, suits, fees, judgments, costs and expenses including attorneys’ fees incurred in responding to such claims, that the Indemnitees may suffer or incur arising out of or in connection with: (a) the Buyer’s negligence, willful misconduct, or breach of any obligation under this Agreement; (b) any allegation that the Indemnitees’ use, of any specifications, design or drawings provided by Buyer and used by Seller for manufacturing products or parts for Buyer, infringes or violates any patent, copyright, trade secret, trademark, or other third party intellectual property rights; (c) any personal injury (including death) or damage to property resulting from the Seller’s or its agents’ acts or omissions including without limitation relating to any custom design, use or installation of products or the failure to use or install appropriate safety mechanisms; or (d) failure to comply with applicable laws. In addition, Buyer shall indemnify Indemnitees for any losses, damages, suits, fees, costs and expenses including reasonable attorneys’ fees arising out of Buyer’s or its buyers’ or end users’ use of the products sold hereunder in any nuclear or nuclear related applications regardless of cause of action and including responsibility and liability for any incidental, indirect and consequential damages.
10. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION, INCREASED MANUFACTURING COSTS, LOSS OF PROFITS, OR GOODWILL) ARISING OUT OF THIS AGREEMENT OR BUYER’S PURCHASE OR USE OF SELLER’S PRODUCTS WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, STRICT TORT, WARRANTY OR ANY OTHER BASIS. SELLER’S LIABILITY SHALL, IN NO EVENT, EXCEED AN AMOUNT EQUAL TO THE PURCHASE PRICE OF THE PARTICULAR PRODUCTS WITH RESPECT TO WHICH A CLAIM IS MADE. TOOLS, DIES, AND OTHER EQUIPMENT FURNISHED TO SELLER BY BUYER SHALL BE AT BUYER’S RISK AND EXPENSE. SELLER DOES NOT INSURE BUYER UNDER ANY OF ITS INSURANCE POLICIES, INCLUDING LIABILITY OR WORKERS’ COMPENSATION.
11. CUSTOM DESIGN. If Buyer requests any products customized to Buyer’s specifications or designs, Buyer hereby grants to Seller a license to use and manufacture such specifications and designs for purposes of such manufacturing for Buyer and Buyer represents and warrants that Buyer has all necessary rights, title and interest to grant the rights set forth herein and that such specifications or design will not infringe the copyrights, patents, trade secret or other intellectual property rights of any third party. Without limitation, if Buyer orders articles that Buyer is licensed to have made for Buyer, Seller is hereby authorized to manufacture said articles under Buyer’s license and Buyer will be responsible for such royalties as may be due and for such notification to its licensor as Buyer is obligated to make.
12. NONWAIVER OF DEFAULT. Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by Buyer, Seller may decline to make further shipments without in any way affecting its rights under such order. If, despite any default by Buyer, Seller elects to continue to make shipments, its actions shall not constitute a waiver of any default by Buyer or in any way affect Seller’s legal remedy for such default and Seller’s failure to deliver, or nonconformity of, any installment of this Agreement after a Buyer default shall not be a breach of the entire Agreement.
13. TERMINATION OR CANCELLATION. After acceptance of an order by Seller, Buyer may not terminate or cancel an order or this agreement except in the event of a material breach by Seller if Buyer provides written notice to Seller specifying such material breach and Seller has not remedied such breach within (i) thirty (30) days of its receipt of such notice; or (ii) in the event that such material breach cannot be reasonably cured within such thirty (30) day period, then only after a reasonable mitigation period as proposed by Seller. Seller may terminate or cancel an order immediately upon written notice for non-payment or upon thirty (30) days’ written notice to Buyer for any other material breach. Notwithstanding the foregoing, if the products to be furnished under these terms are to be used in the performance of a government contract or subcontract and the government terminates such contract, in whole or in part, the applicable order may be cancelled in the same proportion, and the liability of Buyer for termination allowances shall be determined by the then applicable regulations of the Government (regarding termination of contracts).
14. FORCE MAJEURE. Seller shall not be liable for any delays in the delivery of orders or any other failure to perform, due in whole or in part, directly or indirectly, to fire, storm, flood, earthquake, war, insurrection, labor disputes or shortages, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, or any other circumstance beyond Seller’s reasonable control. Buyer agrees that Seller shall not be liable for any direct, indirect, consequential, or special damages which may result from any such delays.
15. ASSIGNMENT. Neither this Agreement nor Buyer’s rights hereunder may be assigned or otherwise transferred by Buyer without the prior written consent of the Seller, except that Seller may assign or transfer all of its rights and obligations to a successor of all or substantially all of its business through a merger, acquisition or sale of assets. This Agreement shall be binding upon and inure to the benefit of the Buyer and Seller and their respective permitted successors and assigns.
16. EXPORT REGULATIONS; PERMITS. Buyer will comply with all applicable laws, rules and regulations regarding the shipping, transfer, import and export of the products including without limitation, the United States Export Administration regulations and related documentation requirements and internal control procedures. Buyer shall be responsible for obtaining any necessary export or import licenses and permits. Without limitation, Buyer represents and warrants that neither Buyer nor any of its personnel or end users of products sold hereunder is located in any embargoed country or included in or listed on any government lists of restricted or denied parties or products including without limitation, the following: (i) the Excluded Parties List System maintained by the United States General Services Administration (the “GSA List”); and (ii) the U.S Treasury’s Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons (the “SDN List”). Buyer will promptly inform Buyer if it or personnel or buyers of products sold hereunder should become subject to any such restrictions or come to be included on any such list.
17. COMPLIANCE WITH LAW. Buyer shall comply with all laws, regulations, treaties, directives, and orders, regulations, treaties, directives, and orders of any jurisdiction (whether international, country, region, state, province or local) applicable to this Agreement and the products purchased hereunder including, but not limited to, any laws relating to import, export, health, safety, security and environmental laws, anti-bribery, anti-corruption and shall maintain internal policies and procedures to ensure such compliance.
18. NUCLEAR LIMITATION OF USE. The Buyer is solely responsible for determining the suitability and compatibility of the products for Buyer’s needs and applications. Without limitation, the products provided hereunder are not sold or intended for use in any nuclear facility or nuclear related applications. Unless otherwise expressly agreed in writing by a duly authorized representative of Seller, Buyer (i) accepts the restriction set forth in the immediately preceding sentence, (ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and (iii) agrees to defend, indemnify and hold harmless Seller as provided in Section 9 above.
19. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws (without regard to its conflict of laws provisions) of the State of Minnesota, U.S.A. and the Buyer submits to the personal jurisdiction of courts located in Minnesota, U.S.A. The United Nations Convention on Contracts for the International Sale of Products shall not apply to this Agreement. Any actions or claims by Buyer under this Agreement shall be brought within 18 months after shipment of the products sold by Seller hereunder, or shall be deemed barred by waiver.
20. INTERPRETATION. All clerical errors are subject to correction. No addition to or modification of any of the provisions upon the face or reverse of this form shall be binding upon Seller, unless made in writing and signed by a duly authorized employee of Seller. If any provision of this Agreement is found to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected.