General Conditions

Selling

Terms and Conditions

1.    EXCLUSIVE TERMS AND CONDITIONS

Together with any other terms the parties agree to in writing, these Terms and Conditions of Sale, and any terms and conditions printed on the face of TURCK Inc.’s (“Seller”) order acknowledgment, form the sole and exclusive terms (this “Agreement”) whereby Buyer (defined below) agrees to purchase from Seller, and Seller agrees to sell to Buyer goods (“Goods”) and other services in connection with the sale of those Goods (“Services”). Notwithstanding any provisions communicated in any way by Buyer to Seller prior to this Agreement, including but not limited to any terms contained in or accompanying any request for quote or purchase order issued by Buyer, Buyer agrees that this Agreement will control the relationship by accepting Goods and Services from Seller, even if Buyer sends to Seller other terms and conditions to which Seller may not respond.  Unless separately accepted by Seller in writing, any such other terms and conditions sent or communicated by Buyer to Seller are rejected.  As used in this Agreement, the term “Buyer” shall mean any buyer of Goods and/or Services from Seller.

 

2.    DELIVERY, TITLE, AND RISK OF LOSS

a.    Delivery or shipping dates are approximate only and merely represent Seller’s reasonable estimate of the time required to make delivery or shipment. Time is not of the essence with respect to the transactions covered by this Agreement, except with respect to Buyer’s obligation to make all related payments. Seller reserves the right to make partial deliveries and ship Goods any time in advance of any specified delivery or shipping date.

b.    Delivery of Goods to Buyer Ex-Works Seller’s facility (INCOTERMS 2010) shall constitute delivery to Buyer and title and the risk of loss shall transfer at that time to Buyer. Should delivery be delayed due to an act or omission on the part of Buyer, risk of loss shall transfer to Buyer upon notification by Seller that the order is complete and ready for shipment.

 

3.    FORCE MAJEURE

Seller shall not be liable for any damages or penalty for any failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Seller’s reasonable control, including but not limited to delay in transportation or delay in delivery by Seller’s vendors.

 

4.    GENERAL TERMS AND CONDITIONS OF WARRANTIES

a.    Seller offers five (5) warranties to cover all Goods sold. They are as follows: 

  • i.    12-Month Warranty.  A 12-month warranty is available for the following Goods:
    1. Linear displacement transducers (EZ-Track) and RFID products.
    2. Draw wire   assemblies / slip rings. 

                   No registration is required for the 12-month warranty.
 

  • ii.    18-Month Warranty.  An 18-month warranty is available for the following Goods:
    1. Q-Track Inductive Sensors.
    2. Ultrasonic sensors, flow sensors, pressure sensors and temperature sensors.
    3. Cables and all non-sensing products sold by Seller not covered by the 12-month warranty, 24-month warranty, 5-year warranty or lifetime warranty, including multi-safe, multi-module, multi-cart and related amplifier products, relays and timers.

                  No registration is required for the 18-month warranty.
 

  • iii.   24-Month Warranty.  A 24-month warranty is available for the following  Goods: 
    1. Encoders.

                  No registration is required for the 24-month warranty.
 

  • iv.   5-Year Warranty.  A 5-year warranty is available generally for the following Goods:
    1. Inductive and capacitive proximity sensors.

                 No registration is required for the 5-year   warranty.

  • v.   Lifetime Warranty.  A warranty for the lifetime of the Original Application (Original Application is defined as the first installation of the product in an application) is available at the original Buyer’s option for the following Goods, subject to fulfillment of the additional conditions specified below: 
    1. Inductive, inductive magnet operated and capacitive proximity sensors.

      The lifetime warranty becomes effective when the accompanying TURCK Lifetime Warranty Registration is completed and returned to Seller. 


b.    Seller warrants Goods covered by the respective warranty above to be free from defects in material and workmanship under normal and proper usage for the respective time periods listed above from the date of delivery to Buyer or from the date specified below in the case of Goods subject to the lifetime warranty.  By accepting delivery of Goods ordered, Buyer agrees to indemnify and hold harmless Seller from and against all claims, loss, damage and liability including but not limited to clams, loss, damage and/or liability for personal injury, property damage or commercial loss of whatever kind, directly or indirectly arising from or relating to any act or omission of Buyer.

c.    The warranties set forth in Sections 4(a) and 4(b) are subject to the following conditions:

  • i.    The warranties are limited to electronic and mechanical performance only, as expressly detailed in Seller’s written specifications applicable to the specific Goods in question and NOT to cosmetic performance.
     
  • ii.    The warranties shall not apply to any cables attached to, or integrated with Goods. However, the 18-month warranty shall apply to cables sold separately by Seller.
     
  • iii.    The warranties shall not apply to any Goods which are stored, or utilized, in harsh environmental or electrical conditions outside Seller’s written specifications.
     
  • iv.    If a Buyer desires to make a warranty claim such Buyer shall, if requested by Seller, ship the defective Goods to Seller’s factory in Minneapolis, Minnesota, postage or freight prepaid.    
     
  • v.    These warranties are applicable only to Goods shipped from Seller subsequent to January 1, 1988.

     

d.    The following additional conditions shall apply to the lifetime warranty in addition to the above:

  • i.    The lifetime warranty shall be effective only when the lifetime warranty registration has been completed, signed by both the end user and an authorized representative of Seller or an authorized distributor of Seller (“Distributor”), and has been received by Seller no later than six (6) months after installation in the end user’s facility, or two (2) years from the date the Goods were shipped from Seller, whichever is sooner.
     
  • ii.    The lifetime warranty is available only to Seller’s authorized representatives, Distributors and to the Original User. (The term “Original User” means that person, firm or corporation which first uses the Goods on a continuous basis in connection with the operation of a production line, piece of machinery, equipment, or similar device.)  In the event the ownership of Goods is transferred to a person, corporation or other entity other than the Original User, the lifetime warranty shall terminate.
     
  • iii.    The lifetime warranty is applicable only to the Original Application. In the event the machinery, equipment, or production line to which defective Goods are connected, or on which they are installed, is substituted, changed, moved or replaced, the lifetime warranty shall terminate.
     
  • iv.    The lifetime warranty shall be valid only if Goods were purchased by the Original User from Seller, or from a Distributor, or were integral parts of a piece of machinery and equipment obtained by the Original User from an original equipment manufacturer, which itself, was purchased directly from Seller or from a Distributor.

     

e.    THESE WARRANTIES ARE EXPRESSLY IN LIEU OF AND EXCLUDE ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR PARTICULAR PURPOSE, USE, OR APPLICATION, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER, UNLESS SUCH OTHER WARRANTIES, OBLIGATIONS OR LIABILITIES ARE EXPRESSLY AGREED TO IN WRITING AND SIGNED AND APPROVED BY SELLER.  UNLESS EXPRESSLY AGREED TO BY SELLER IN WRITING AND SIGNED AND APPROVED BY SELLER, SELLER PROVIDES NO WARRANTIES IN CONNECTION WITH ANY SERVICE SELLER PROVIDES TO BUYER, ANY SUCH SERVICES ARE PROVIDED “AS IS” AND SELLER HEREBY DISCLAIMS ANY AND ALL EXPRESSED OR IMPLIED WARRANTIES IN CONNECTION WITH ANY SUCH SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.    
 

f.    THE PARTIES AGREE THAT IN THE EVENT OF ANY BREACH OF THE 12-MONTH WARRANTY, 18-MONTH WARRANTY, 24-MONTH WARRANTY, 5-YEAR WARRANTY OR LIFETIME WARRANTY DURING THE APPLICABLE WARRANTY PERIOD, SELLER SHALL AT ITS OPTION REPAIR OR REPLACE THE DEFECTIVE GOODS (POSTAGE OR FREIGHT PREPAID) OR REFUND THE PRICE PAID BY BUYER FOR SUCH DEFECTIVE GOODS; PROVIDED, HOWEVER, IN THE CASE OF THE LIFETIME WARRANTY, IN THE EVENT THE GOODS ARE NO LONGER BEING MANUFACTURED BY SELLER, THE AMOUNT TO BE REFUNDED BY SELLER TO BUYER SHALL BE REDUCED AS SET FORTH IN THE TABLE BELOW:

Number of Years Since Date of Purchase by Buyer Percent of Original Purchase Price to be Paid by Seller
10 50%
15 25%
20 10%
More than 20 5%

 

THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR BREACH OF THE 12-MONTH WARRANTY, 18-MONTH WARRANTY, 24-MONTH WARRANTY, 5-YEAR WARRANTY OR LIFETIME WARRANTY, AS APPLICABLE.  

 

5.    LIMITATION ON LIABILITY 

a.    SELLER SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR DAMAGE OR INJURY TO PERSONS OR PROPERTY OR FOR OTHER LOSS OR INJURY RESULTING FROM ANY CAUSE WHATSOEVER ARISING OUT OF OR RELATED TO GOODS AND/OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY DEFECT IN GOODS AND/OR SERVICES, OR FROM USE OR INSTALLATION.  SELLER’S MAXIMUM LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT AND/OR RELATING TO THE GOODS AND/OR SERVICES, INCLUDING, BUT NOT LIMITED TO, CLAIMS OF BUYER OR ANY THIRD PARTY RESULTING FROM THE USE OF SELLER’S GOODS, SHALL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS ACTUALLY MADE TO SELLER BY BUYER FOR THE GOODS OR ANY PART THEREOF AN/OR SERVICES RELATED THERETO ON WHICH THE LIABILITY IS BASED.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES INCURRED BY BUYER OR SUCH THIRD PARTY FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION), WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY, INCLUDING THE NEGLIGENCE OF SELLER, BREACH OF WARRANTY OR OTHERWISE.
 

b.    SELLER WILL NOT ACCEPT ANY PENALTY OR LIQUIDATED DAMAGE CLAUSES OF ANY KIND, WRITTEN OR IMPLIED, OR ANY LIABILITY ARISING FROM SUCH CLAUSES.
 

c.    No sales representative of Seller has authority to alter, vary, or waive the terms and conditions set forth herein.
 

d.    If Buyer is supplying or supplies Seller’s Goods to a third party, Buyer shall require the third party to be bound by the limitations and exclusions in the General Terms and Conditions of Warranties and the Limitation on Liability set forth above.  If Buyer does not obtain such agreement from the third party for Seller’s benefit, Buyer shall indemnify and hold harmless Seller for all liability arising out of claims made by the third party in excess of the limitations and exclusions set forth above in the General Terms and Conditions of Warranties and the Limitation on Liability.

 

6.    SAFETY AND PROTECTION PRECAUTIONS

Seller takes great care to design and build reliable and dependable Goods, however, some products can fail eventually.  Buyer shall take precautions to design Buyer’s equipment to prevent property damage and personal injury in the unlikely event of failure.  As a matter of policy, Seller does NOT recommend the installation of electronic controls as the sole device for the protection of personnel in connection with power driven presses, brakes, shears and similar equipment. Therefore, Seller recommends that Buyer build in redundancy or dual control using approved safety devices for these applications and Seller disclaims any responsibility or liability for losses, damages, costs, expenses or personal injury to the extent the same arise from Buyer’s failure to build in such redundancy or dual control.


7.    PAYMENT


Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice unless separately agreed to in writing by the Seller.  Buyer shall make all payments hereunder by wire transfer, electronic transfer or check and in U.S. dollars, unless separately agreed to in writing by the Seller.  Buyer shall pay interest on all late payments at the lesser amount of one percent (1%) per month or the highest rate permissible under applicable law.  Seller shall be entitled to suspend delivery of any Goods or performance of any Services if Buyer fails to pay any amounts when due hereunder.
 

8.    TAXES
 

Seller’s prices for Goods and Services do not include federal, state or local sales, use, goods and services, excise or other similar taxes.  All such taxes shall be paid by Buyer unless Buyer provides Seller with evidence satisfactory to Seller of exemption from such taxes.  When Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the price of Goods and/or Services. 

 

9.    GOVERNING LAW AND DISPUTE RESOLUTION


The sale and purchase of Goods covered hereby and all terms and conditions hereof shall be governed by the law of the State of Minnesota, without application of the conflicts of law principles thereof.  In the event of a dispute concerning this Agreement, the complaining party shall notify the other party in writing thereof. Representatives of both parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. The seat of arbitration shall be Minneapolis, Minnesota, and the rules of the arbitration will be the Commercial Arbitration Rules of the American Arbitration Association, which are incorporated by reference into this Section 9.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply. 

Purchasing

PURCHASE ORDER TERMS & CONDITIONS

1)            APPLICABILITY: 

 

(a)           These terms and conditions of purchase (these “Terms”) are the only terms and conditions which govern the purchase of goods (“Goods”) and/or services (“Services”) by TURCK Inc. (“Buyer”) from the seller named on the accompanying purchase order (“Seller”).  Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and/or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

 

(b)           The accompanying purchase order (the “Purchase Order”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and, except as set forth in the preceding Section 1(a), supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.  These Terms prevail over any of Seller’s terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation, order acknowledgment or such terms.  This Agreement expressly limits Seller’s acceptance to the terms of this Agreement.  Fulfillment of this Purchase Order constitutes acceptance of these Terms.

 

2)            DELIVERY AND PERFORMANCE:

 

               (a)           Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”).  If no delivery date is specified, Seller shall deliver the Goods within fifteen (15) days of Seller’s receipt of the Purchase Order.  If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller.  Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the Goods on the Delivery Date.  Unless early delivery has been requested, Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.

 

               (b)           Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer.  Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition.  Seller shall provide Buyer prior written notice if Seller requires Buyer to return any packaging material.  Any return of such packaging material shall be made at Seller’s risk of loss and expense.

 

               (c)           Seller shall provide the applicable Services to Buyer as described and in accordance with these Terms and the  Purchase Order, including any schedule set forth therein.

 

               (d)           Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and/or Services.

 

3)            QUANTITY: If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods.  Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense.  If Buyer does not reject the Goods and instead accepts the delivery of the Goods at the increased or reduced quantity, the Price (as defined below) for the Goods shall be adjusted on a pro-rata basis.

 

4)            SHIPPING TERMS:  Unless specified otherwise in the Purchase Order, delivery shall be made DAP specified Delivery Point (INCOTERMS 2010) in the case of shipments originating within the United States and DDP specified Delivery Point (INCOTERMS 2010) in the case of shipments originating outside the United States.  The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.  Seller shall be responsible for all costs and expenses incurred due to its failure to comply with Buyer’s shipping instructions.

 

5)            TITLE AND RISK OF LOSS:  Title and risk of loss shall pass to Buyer upon delivery of the Goods at the Delivery Point.

 

6)            INSPECTION AND REJECTION OF NONCONFORMING GOODS:  Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods.  Buyer may elect to retain rejected items and remedy any defects therein, the cost of which shall be deducted from any amount due to Seller.  In the event sorting is required, Seller has the option of reworking or replacing the defective items at Seller’s expense and if that is not possible, Buyer can sort or rework the items at a cost of $55.00 USD per hour per person. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant Section 19. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions. 

 

7)            PRICE:  The price of the Goods and/or Services is the price stated in the Purchase Order (the "Price"). If no price is included in the Purchase Order, the Price shall be the price set out in Seller's published price list in force as of the date of the Purchase Order. No increase in the Price shall be effective without the prior written consent of Buyer.

 

8)            PAYMENT TERMS:  Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Unless otherwise specified on the Purchase Order, Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days from receipt of such invoice, except for any amounts disputed by Buyer in good faith.  All payments hereunder must be in U.S. dollars.  Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under this Agreement or any other agreement between the parties.

 

9)            SELLER’S OBLIGATIONS REGARDING SERVICES: 

 

Seller shall:

 

               (a)           before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses, permits, authorizations and consents and comply with all relevant laws applicable to the provision of the Services;

 

               (b)           comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures and general health and safety practices and procedures;

 

               (c)           maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of five (5) years thereafter, upon Buyer's written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;

 

               (d)           obtain Buyer's written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller's employees, to provide any Services to Buyer (each such approved subcontractor, affiliate or other third party, a "Permitted Subcontractor"). Buyer's approval of any Permitted Subcontractor shall not relieve Seller of its obligations under this Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller's own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;

 

               (e)           require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement that is reasonably satisfactory to Buyer;

 

               (f)            ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services;

 

               (g)           ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and

 

               (h)           keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer's written instructions or authorization.

 

10)           CHANGE ORDERS:  Buyer may at any time, by written instructions and/or drawings issued to Seller (each a "Change Order"), order changes to the Products or Services. Seller shall within fifteen (15) days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed Services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under this Agreement. 

 

11)           CANCELLATION:  Buyer may, by notice given to Seller in writing, cancel this Purchase Order without cause, as to any portion or all hereof not completed, shipped or performed at the time of Seller’s receipt of such notice. Seller, upon receipt of such notice, shall to the extent specified therein, stop work immediately.  In the event of such cancellation, Buyer shall only pay Seller for those items of this Purchase Order which may have been then completed, shipped, or performed, and reimburse to Seller for any reasonable costs incurred.

 

12)           WARRANTIES:

 

               (a)           Unless specified otherwise in the Purchase Order, Seller warrants to Buyer that all Goods will:

 

               (i)  be free from any defects in workmanship, material and design;

 

               (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer;

 

               (iii) be fit for their intended purpose and operate as intended;

 

                             

(iv) be merchantable;

 

               (v) be free and clear of all liens, security interests, or other encumbrances; and

 

               (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights.

 

These warranties shall survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.

 

               (b)           The warranty period for any Goods installed in a product sold by Buyer shall commence on the Delivery Date and expire ninety (90) days after the warranty period provided by Buyer for the product in which the item is installed.  The warranty period for any Goods not installed in a product sold by Buyer shall commence on the Delivery Date and expire eighteen (18) months from the Delivery Date.

 

(c)           Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.  The warranty period for Services provided hereunder shall extend for eighteen (18) months following performance of the applicable Services.

 

               (d)           The warranties set forth in this Section 13 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations shall run from the date of Buyer's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.

 

13)           GENERAL INDEMNIFICATION:  Seller shall defend, indemnify and hold harmless Buyer and Buyer's parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and/or Services purchased from Seller or Seller's negligence, willful misconduct, or breach of the Terms. Seller shall not enter into any settlement without Buyer's prior written consent.

 

14)           INTELLECTUAL PROPERTY INDEMNIFICATION:  Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.

 

15)           LIMITATION OF LIABILITY:  Nothing in this Agreement shall exclude or limit (a) Seller’s liability under the Terms hereof, or (b) Seller’s liability for fraud, personal injury, or death caused by its negligence or willful misconduct.

 

16)           INSURANCE:  During the term of this Agreement and for a period of five (5) years thereafter, Seller shall, at its own expense, maintain and carry in full force and effect workers compensation, comprehensive general liability, products liability/completed operations liability, contractual liability, automobile, public liability, employer’s liability, and property damage insurance in amounts sufficient to cover any Losses assumed hereunder.  Upon Buyer’s request, Seller will furnish certificates of insurance to Buyer evidencing the foregoing insurance.  The certificate of insurance shall name Buyer as an additional insured.  Such policies are to be primary policies and not excess over or contributory with any other valid, applicable, or collectible insurance that may be issued to Buyer.  The failure of Seller to comply with the requirements of this Section shall not relieve Seller of any other liability or obligation under this Agreement.  Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy.  Except where prohibited by law, Seller shall require its insurer to waive all rights of subgrogation against Seller’s insurer and Seller.

 

17)           COMPLIANCE WITH LAW:  Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all  licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.  Seller shall comply with all export, import and other international trade laws and regulations applicable to the sale, resale, export, import, transportation and/or shipment of the Goods and/or the provision of Services under this Agreement. 

 

18)           TERMINATION:  In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods or Seller's delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part.  If Seller 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, then Buyer may terminate this Agreement upon written notice to Seller.  If Buyer terminates the Agreement for any reason, Seller's sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.

 

19)           WAIVER:  No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. 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.

 

20)           CONFIDENTIAL INFORMATION:  All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, 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, may be used solely for the purpose of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer 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 Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

 

21)           FORCE MAJEURE:  Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances.  Seller's economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than sixty (60) days, Buyer may terminate this Agreement immediately by giving written notice to Seller.

 

22)           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.

 

 

23)           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 this Agreement.

 

24)           GOVERNING LAW; SUBMISSION TO JURISDICTION:

 

               (a)           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.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

 

               (b)           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 City of Minneapolis and Hennepin County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

 

25)           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 set forth on the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, internationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

26)           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.

 

27)           ASSIGNMENT:  Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer's assets.

 

28)           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, the following provisions: General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Laws, Confidential Information, Governing Law/Submission to Jurisdiction, and Survival.

 

29)           AMENDMENT AND MODIFICATION:  These Terms may only be amended or modified in a writing (i) stating specifically that it amends these Terms and (ii) that is signed by an authorized representative of each party.

 

30)           ADVERTISING: Seller shall not, without first obtaining the written consent of Buyer, in any manner advertise or publish the fact that Seller has furnished or contracted to furnish Buyer with Goods and/or Servicies ordered hereby, or disclose any of the details connected with this Purchase Order to any third party except as may be required to perform this Purchase Order.

 

31)           PROPERTY OF BUYER:  All molds, tools, patterns,goods for repair and other specific equipment provided by Buyer to Seller, or developed and/or created by Seller at Buyer’ request and expense (including the industrial or intellectual property rights in connection therewith) to assist in the manufacture of the Goods shall constitute and remain Buyer’s exclusive property and shall be labeled accordingly.  Should Seller have possession of any property of Buyer, such as molds, tools, patterns, equipment, goods for repair, or any other kind of property, Seller agrees that it will, at its own expense, protect such property from damage, fire, and casualty of any kind and upon request from Buyer will return such property to Buyer free from any and all damage and injury.  Seller shall indemnify Buyer for any Losses arising out of or occurring in connection with such property while in Seller’s possession.

 

32)           SERVICE PARTS:  Seller will make parts for Buyer's service and warranty requirements for ten (10) years or for such longer time as may be required by Buyer after the Purchase Order is terminated.  The price of the part for Buyer's service requirements will be the price provided in the last applicable Purchase Order (subject to any mutually agreed equitable adjustment) plus costs actually incurred for special packaging. 

 

 

 

 

 

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