Acceptance. Acceptance of this order by seller is expressly limited to the terms and conditions contained in this order. Any term or condition stated by seller in any prior proposal, on seller’s acknowledgment form, or in otherwise acknowledging or accepting this order is deemed by buyer to be a material alteration of this order and is hereby rejected by buyer, and such term or condition shall be totally inapplicable to this order unless specifically agreed to in writing signed by an authorized representative of buyer. Acceptance of the goods and/ or services covered by this order will not constitute acceptance by buyer of seller’s terms and conditions. Any of the following acts by seller shall constitute acceptance of this order and all of its terms and conditions: signing and returning a copy of this order, delivery of any of the goods and/or services ordered, informing buyer in any manner of commencement of performance, or returning seller’s own form of acknowledgment.
Cancellation. Buyer reserves the right to cancel this order at any time before acceptance. This is not a firm offer.
Price, Payment Terms and Delivery. Seller shall furnish the goods and/or services covered by this order in accordance with the prices and delivery schedule stated on the face of this order. If prices and/or delivery dates are not stated, Seller shall offer its lowest prices or best delivery dates, both of which shall be subject to written acceptance by Buyer. All prices include all applicable taxes, except sale taxes which are separately shown when applicable. Seller warrants that the prices charged for the goods and/or services will be as low as the lowest prices charged by the Seller to any customer purchasing similar goods in the same or similar quantities and under like circumstances.
Payment terms are net forty-five (45) days (unless otherwise agreed to and specifically provided on this order) beginning the date of the receipt of invoice by Buyer.
Buyer’s schedules are based upon the agreement that the goods will be delivered to Buyer by the date(s) specified on this order. If the delivery date(s) cannot be met someone must immediately inform the Buyer in writing of Seller’s best possible delivery date(s) subject to Buyer’s acceptance. If deliveries are not made at the time agreed upon, Buyer may (a) request that Seller ship the goods by other than designated routing to expedite delivery (cost of alternative means of shipment shall be borne by Seller), or (b) cancel this order in whole or in part and purchase comparable goods elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery or cancellation. All goods are sold F.O.B. destination. Seller shall bear all risk of loss or damage to the goods, title shall not shift to Buyer, until delivery of the goods to Buyer’s location.
Warranties. Buyer shall have the benefit of all warranties implied at law, and all warranties, express or implied, made by Seller. In addition to all other express or implied warranties, Seller warrants that the goods and/or services will be (a) free from defects in workmanship and material (b) free from defects in design, (c) suitable for the purposes, if any, which are stated on this order and (d) in conformity with all of the requirements of this order. These warranties, and all other warranties, express or implied, shall survive delivery, inspection, acceptance and payment. In addition to any other rights Buyer may have, if the goods are found not be warranted within a period of one (1) year after acceptance by Buyer, Buyer may return such goods to Seller, at Seller’s expense, for correction, replacement or credit, as Buyer may direct. Any goods and/or services corrected or furnished in replacement shall, from the date of delivery of such corrected or replacement goods and/or services, be subject to the provisions of this paragraph for the same period and to the same extent as goods and/or services initially furnished pursuant to this order.
Inspection. All goods shall be received subject to Buyer’s right of inspection. Payment or acknowledgment of receipt and packing slip or bill of lading by any person shall not constitute acceptance. Goods which are delivered in quantity may be inspected by sampling and Buyer reserves the right to reject any portion of such goods found within six (6) months of the date of delivery to be nonconforming when drawn from inventory. Non-conforming goods will be held by Buyer at Seller’s risk pending Seller’s instructions. Buyer may reject all or part of any shipment which contains non-conforming goods.
Rejection. In the event any of the goods to be delivered hereunder failed to conform to this order, or in the event delivery is not made as herein provided Buyer may, at its option, reject the whole, accept the whole, or accept any unit or units and reject the rest. If Buyer rejects any part of the goods delivered or tendered under this order, it shall forthwith notify Seller in writing. Said notice of rejection shall specify all claimed defects and nonconformity in the goods; provided, however, that except as otherwise provided by law, failure by Buyer to state a particular defect shall not preclude it from relying upon the unseated defect to justify rejection or to establish breach.
Custom and Usage. No course of performance or any course of dealing or usage of trade shall vary the express terms hereof.
Regulatory Compliance. Seller represents that the goods and/or services covered by this order have been manufactured, sold, delivered and performed in compliance with the requirements of all foreign, federal, state and municipal rules and regulations.
Force Majeure. Failure of Seller to make, or Buyer to take, all or any part of any delivery hereunder, if such failure is due to acts of God, war, terrorism, labor difficulties, breakdowns or damage to Seller’s facilities or the receiving facilities of Buyer, embargoes, shortages of transportation equipment, compliance with any law, regulation or order of any public authority and any other cause beyond either party’s control, shall not subject such party to any liability to the other party; provided, however, that in the event Seller is unable to meet the delivery schedule provided by Buyer, due to conditions beyond Seller’s control, Buyer reserves the right to refuse shipment and any other schedule unless such schedule has been submitted to and approved by Buyer.
Patent and Copyrights. Seller shall defend, at its own expense, any suit or claim that may be instituted against Buyer or any customer of Buyer for such alleged infringement, and Seller shall indemnify Buyer and its customers for all costs and damages arising out of such alleged infringement.
Over shipment. Material shipped in excess of quantity ordered will be held at Seller’s risk and may be returned at Seller’s expense.
Changes to Goods. Seller agrees to notify Buyer before making any material changes in the physical characteristics, manufacturing process or composition of the goods which could adversely affect Buyers use of the goods.
Country or Origin. If the goods purchased hereunder are goods of foreign origin, Seller will cause all such goods and their containers to be marked with the country of origin, as required by United States law, and will indicate the country of origin on all invoices for the goods. Upon Buyer’s request, Seller will promptly complete and return to Buyer certification(s) to evidence the origin of such materials purchased hereunder.
Non-Waiver. Waiver by either Seller or Buyer of a breach by the other of any provision of this order shall not be deemed a waiver of future compliance therewith, and such provision shall remain in full force and effect.
Modification. With the exception of warranties, express and implied, made by Seller to Buyer which are not set forth herein, this writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms and conditions of the agreement which can be modified or rescinded only by a writing signed by both parties or their duly authorized agents.
Assignment. This order may not be assigned by Seller without the written consent to Buyer. Buyer may assign this order to any entity controlled by, controlling or under common control with Buyer.
Governing Law. All questions relating to the legality, validity, enforceability, interpretation and performance of this order shall be governed by the laws of the State of Minnesota, U.S.A. without regard to its conflict of laws principles.
Opt out of the United Nations convention on contracts for the international sale of goods; UCC to apply. Buyer and seller hereby specifically agree and declare that the United Nations convention on contracts for the international sale of goods shall not apply to the goods and/or services that are the subject of this order; and, instead, the uniform commercial code shall apply to the goods and/or services that are the subject of this order.