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Dimensional Experts, Inc. Terms and Conditions (11/2023)
1. Applicability. These terms and conditions of sale (these “Terms”) shall govern the sale of the goods (“Goods”) by Dimensional Experts, Inc. (“Seller”) to the purchaser of Goods (“Buyer”). Buyer’s issuance of a Purchase Order constitutes acceptance of Seller’s Terms and Conditions.
2. Orders Procedure.
2.1. Purchase Order Transaction Terms. Buyer shall specify the following information as applicable (collectively, the “Purchase Order Transaction Terms”) in each Purchase Order:
• a list of Goods sold by Seller to be purchased;
• quantities of each Good ordered;
• requested delivery date;
• address for delivery; and
• business point of contact.
2.2. Purchase Order. Buyer shall issue all Purchase Orders in written form via facsimile, email, or US mail, and cause all Purchase Orders to contain the Purchase Order Transaction Terms. By placing a Purchase Order, Buyer makes an offer to purchase Goods under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Except regarding the Purchase Order Transaction Terms, any attempted variations made to the terms and conditions of this Agreement by Buyer in any Purchase Order are void and have no effect. The accompanying order acknowledgment (the “Order Acknowledgement” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify these Terms.
3. Changes and Cancellation. Purchase Orders accepted by Seller are not subject to changes or cancellation by Buyer except with Seller’s written consent. If Seller consents to Customer’s cancellation of a Purchase Order, Buyer shall not be entitled to any refund of any amount paid under this Agreement and cancellation charges may apply at Seller’s discretion.
4. Shipping Terms. Delivery shall be made FOB Seller’s place of business in Elk River, Minnesota. Buyer shall specify the carrier and provide their shipper information. Seller will, after receipt and acceptance of a Purchase Order, provide Buyer with an estimated delivery date. Seller may reschedule any delivery up to 90 days past the original delivery date. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order.
5. Delivery and Risk of Loss. The Goods will be delivered within a reasonable time after the receipt of Buyer’s Purchase Order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Risk of loss pass to Buyer upon delivery of the Goods at the Shipping Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods promptly upon receipt thereof. If Buyer discovers any “Nonconforming Goods” it shall furnish such written evidence or other documentation as required by Seller. Any Goods not properly rejected within 10 days of receipt of that product by Buyer shall be deemed accepted. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s Purchase Order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located in Elk River, Minnesota. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. Price.
(a) Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s Purchase Order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
9. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 7 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by ACH, check or credit card and in US dollars. If Buyer pays by credit card, a 4% surcharge will be added to the amount due.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
10. Seller’s Limited Warranty.
(a) Seller warrants to Buyer that for a period of 90 days from the date of shipment of the Goods (“Warranty Period”), that such Goods will be free from material defects in material and workmanship. Goods for which Buyer has provided the print/design or modification to Seller’s standard design are excluded from this Warranty.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF DESIGN; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED.
(c) Goods manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 10 days of the time when Buyer discovers or ought to have discovered the defect and provides evidence and documentation as requested by Seller; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; (iv) the Goods have been sold as used; or (v) the Goods have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions.
(f) Subject to Section 10(d) and Section 10(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part); or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 10(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a).
11. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (1) ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (2) DAMAGES CAUSED BY THE BUYER’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, NEGLIGENCE, OR MORE CULPABLE ACT; (3) CLAIMS, DEMANDS OR ACTIONS AGAINST THE BUYER BY ANY OTHER PARTY; OR (4) “ACTS OF GOD.”
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SELLER FOR THE SPECIFIC GOODS SOLD HEREUNDER THAT CAUSED THE DAMAGE.
12. INDEMNIFICATION. BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION ARISING ON ACCOUNT OF OR OTHERWISE CAUSED BY, OR RESULTING FROM BUYER’S BREACH OF THIS AGREEMENT OR ANY REPRESENTATION OR WARRANTY HEREUNDER, BUYER’S NEGLIGENCE OR MORE CULPABLE ACT, BUYER’S OR ITS CUSTOMER’S USE OR SALE OF THE GOODS, ANY CLAIM OF A THIRD-PARTY ALLEGING BODIY INJURY, DEATH, OR DAMAGE TO PROPERTY CAUSED BY THE ACTS OR OMMISSIONS OF BUYER OR ITS CUSTOMER; OR ANY FAILURE BY BUYER TO MATERIALLY COMPLY WITH APPLICABEL LAWS.
13. Buyer’s Representation and Warranties. Buyer represents and warrants that any Buyer supplied designs or modifications shall not infringe on any third-party intellectual property rights. Buyer further represents and warrants that it has the full right, power and authority to enter into this Agreement.
14. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
15. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 14 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 60 days following written notice given by it under this Section 18, either party may thereafter terminate this Agreement upon 7 days’ written notice.
19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
22. Dispute Resolution.
22.1. Good-Faith Negotiation. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the Chief Executive Officer of Seller (or to such other person of equivalent or superior position designated by Seller in a written Notice to Buyer) and the Chief Executive Officer of Buyer (or to such other person of equivalent or superior position designated by Buyer in a written Notice to Seller), by delivery of written Notice (each, a “Dispute Notice”) from either of the parties to the other party. Such persons shall negotiate in good faith to resolve the Dispute. If the parties cannot resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, either party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 22 hereunder.
22.2. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
22.3. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the County of Sherburne, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
22.4. The foregoing provisions of this Section 22 shall not preclude the parties from applying for any preliminary or injunctive remedies available for any purpose including, without limitation, enforcement of the confidentiality provisions of this Agreement.
22.5. If any suit or other proceeding is brought to construe or enforce any provision of this Agreement or any other agreement to be entered into under this Agreement, or otherwise in connection with this Agreement, the prevailing party’s reasonable attorneys’ fees and costs (in addition to all other amounts and relief to which such party or parties may be entitled) will be paid by the other party.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses or email addresses set forth on the face of the Order Acknowledgement or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, Buyer’s obligation to pay for ordered Goods, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Dispute Resolution, and Survival.
1. Applicability. These terms and conditions of sale (these “Terms”) shall govern the sale of the goods (“Goods”) by Dimensional Experts, Inc. (“Seller”) to the purchaser of Goods (“Buyer”). Buyer’s issuance of a Purchase Order constitutes acceptance of Seller’s Terms and Conditions.
2. Orders Procedure.
2.1. Purchase Order Transaction Terms. Buyer shall specify the following information as applicable (collectively, the “Purchase Order Transaction Terms”) in each Purchase Order:
• a list of Goods sold by Seller to be purchased;
• quantities of each Good ordered;
• requested delivery date;
• address for delivery; and
• business point of contact.
2.2. Purchase Order. Buyer shall issue all Purchase Orders in written form via facsimile, email, or US mail, and cause all Purchase Orders to contain the Purchase Order Transaction Terms. By placing a Purchase Order, Buyer makes an offer to purchase Goods under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms. Except regarding the Purchase Order Transaction Terms, any attempted variations made to the terms and conditions of this Agreement by Buyer in any Purchase Order are void and have no effect. The accompanying order acknowledgment (the “Order Acknowledgement” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify these Terms.
3. Changes and Cancellation. Purchase Orders accepted by Seller are not subject to changes or cancellation by Buyer except with Seller’s written consent. If Seller consents to Customer’s cancellation of a Purchase Order, Buyer shall not be entitled to any refund of any amount paid under this Agreement and cancellation charges may apply at Seller’s discretion.
4. Shipping Terms. Delivery shall be made FOB Seller’s place of business in Elk River, Minnesota. Buyer shall specify the carrier and provide their shipper information. Seller will, after receipt and acceptance of a Purchase Order, provide Buyer with an estimated delivery date. Seller may reschedule any delivery up to 90 days past the original delivery date. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Purchase Order.
5. Delivery and Risk of Loss. The Goods will be delivered within a reasonable time after the receipt of Buyer’s Purchase Order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Risk of loss pass to Buyer upon delivery of the Goods at the Shipping Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
6. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods promptly upon receipt thereof. If Buyer discovers any “Nonconforming Goods” it shall furnish such written evidence or other documentation as required by Seller. Any Goods not properly rejected within 10 days of receipt of that product by Buyer shall be deemed accepted. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s Purchase Order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located in Elk River, Minnesota. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. Price.
(a) Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s Purchase Order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
9. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller within 7 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by ACH, check or credit card and in US dollars. If Buyer pays by credit card, a 4% surcharge will be added to the amount due.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
10. Seller’s Limited Warranty.
(a) Seller warrants to Buyer that for a period of 90 days from the date of shipment of the Goods (“Warranty Period”), that such Goods will be free from material defects in material and workmanship. Goods for which Buyer has provided the print/design or modification to Seller’s standard design are excluded from this Warranty.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF DESIGN; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE HEREBY DISCLAIMED.
(c) Goods manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 10 days of the time when Buyer discovers or ought to have discovered the defect and provides evidence and documentation as requested by Seller; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; (iv) the Goods have been sold as used; or (v) the Goods have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions.
(f) Subject to Section 10(d) and Section 10(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part); or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 10(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a).
11. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR (1) ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (2) DAMAGES CAUSED BY THE BUYER’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, NEGLIGENCE, OR MORE CULPABLE ACT; (3) CLAIMS, DEMANDS OR ACTIONS AGAINST THE BUYER BY ANY OTHER PARTY; OR (4) “ACTS OF GOD.”
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID TO SELLER FOR THE SPECIFIC GOODS SOLD HEREUNDER THAT CAUSED THE DAMAGE.
12. INDEMNIFICATION. BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION ARISING ON ACCOUNT OF OR OTHERWISE CAUSED BY, OR RESULTING FROM BUYER’S BREACH OF THIS AGREEMENT OR ANY REPRESENTATION OR WARRANTY HEREUNDER, BUYER’S NEGLIGENCE OR MORE CULPABLE ACT, BUYER’S OR ITS CUSTOMER’S USE OR SALE OF THE GOODS, ANY CLAIM OF A THIRD-PARTY ALLEGING BODIY INJURY, DEATH, OR DAMAGE TO PROPERTY CAUSED BY THE ACTS OR OMMISSIONS OF BUYER OR ITS CUSTOMER; OR ANY FAILURE BY BUYER TO MATERIALLY COMPLY WITH APPLICABEL LAWS.
13. Buyer’s Representation and Warranties. Buyer represents and warrants that any Buyer supplied designs or modifications shall not infringe on any third-party intellectual property rights. Buyer further represents and warrants that it has the full right, power and authority to enter into this Agreement.
14. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
15. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
16. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 14 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 60 days following written notice given by it under this Section 18, either party may thereafter terminate this Agreement upon 7 days’ written notice.
19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
22. Dispute Resolution.
22.1. Good-Faith Negotiation. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the Chief Executive Officer of Seller (or to such other person of equivalent or superior position designated by Seller in a written Notice to Buyer) and the Chief Executive Officer of Buyer (or to such other person of equivalent or superior position designated by Buyer in a written Notice to Seller), by delivery of written Notice (each, a “Dispute Notice”) from either of the parties to the other party. Such persons shall negotiate in good faith to resolve the Dispute. If the parties cannot resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, either party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 22 hereunder.
22.2. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
22.3. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the County of Sherburne, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
22.4. The foregoing provisions of this Section 22 shall not preclude the parties from applying for any preliminary or injunctive remedies available for any purpose including, without limitation, enforcement of the confidentiality provisions of this Agreement.
22.5. If any suit or other proceeding is brought to construe or enforce any provision of this Agreement or any other agreement to be entered into under this Agreement, or otherwise in connection with this Agreement, the prevailing party’s reasonable attorneys’ fees and costs (in addition to all other amounts and relief to which such party or parties may be entitled) will be paid by the other party.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses or email addresses set forth on the face of the Order Acknowledgement or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party.
24. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, Buyer’s obligation to pay for ordered Goods, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Dispute Resolution, and Survival.