1. PRICE QUOTATIONS
a. Unless otherwise agreed to in writing by TCIC, all quotations are offered for immediate acceptance. All prices quoted are valid only if Buyer’s requested delivery date (including any change orders) is within thirty (30) days of the date on which the original order is placed.
b. Unless otherwise agreed to in writing by TCIC, all prices quoted are exclusive of all taxes (except taxes levied against TCIC’s income) including state and local use, sales, property (ad valorem) and similar taxes. Buyer agrees to pay such taxes unless Buyer has provided TCIC with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which equipment is to be directly shipped hereunder or unless such sale is otherwise exempt from such taxes. When applicable, such taxes shall appear as a separate item on TCIC’s invoice.
c. Unless otherwise agreed to in writing by TCIC, all quotations are exclusive of freight charges. Freight charges will be invoiced to client at actual cost.
2. PAYMENT AND SECURITY TERMS
a. Unless otherwise agreed to in writing by TCIC, Buyer shall pay all invoices issued within thirty (30) days from the date of invoice receipt. Invoices shall be deemed to have been given and received on the third (3rd) business day following the mailing thereof. TCIC reserves the right to change the credit terms at any time, when in TCIC’s opinion Buyer’s financial condition or previous payment record so warrants.
b. On any invoice not paid by maturity date of thirty (30) days from receipt of invoice (as defined in 2(a) above) Buyer shall pay interest from maturity to date of payment at the annual percentage rate of 18% (or such lower rate as may be the maximum allowable by law), together with TCIC’s costs of collection (including reasonable attorneys’ fees).
c. Buyer agrees to pay the entire amount of each invoice rendered by TCIC pursuant to the terms of each such invoice without offset or deduction.
d. Should Buyer become delinquent in the payment of any sum due TCIC, after ten (10) days from the date of written notice to Buyer, TCIC shall not be obligated to continue performance under any agreement with Buyer.
e. Buyer hereby grants and TCIC reserves a purchase money security interest in each product purchased hereunder, and in any proceeds thereof, for the amount of its purchase price. Buyer nominates and appoints TCIC as its attorney-in-fact for the sole purpose of executing and filing, on Buyer’s behalf, UCC-1 financing statements (and any appropriate amendments thereto) or a suitable substitute document (including this document) under the provisions of the Uniform Commercial Code or local law for the purchased products. Payment in full of the purchase price of any product purchased hereunder shall release the security interest on that product.
3. DELIVERY DATES
Shipments of any products purchased are subject to availability. TCIC shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged. However, TCIC will not be liable for its failure to meet such date(s). UNLESS CLIENT SPECIFIES “SHIP COMPLETE ONLY”, PARTIAL SHIPMENTS WILL BE MADE AND CLIENT WILL BE INVOICED FOR PRODUCTS SHIPPED.
4. DELAYS IN PERFORMANCE
TCIC shall not be liable for any delay in performance hereunder due to unforeseen circumstances or due to causes beyond its control including, but not limited to, acts of nature, acts of government, labor disputes, delays in transportation, and delays in delivery or inability to deliver by TCIC’s suppliers.
5. SHIPMENT, RISK OF LOSS AND PACKING
a. TCIC shall ship in accordance with TCIC’s standard practices. Buyer shall pay all rigging and accessorial charges. Buyer may specify different shipping instructions, subject to agreement by TCIC. Shipments moving under Buyer instructions shall be freight collect unless otherwise agreed to by TCIC.
b. Title to the products and risk of loss and damage shall pass to Buyer at the shipping location.
c. Unless otherwise agreed to in writing by TCIC, all products shall be packed, if appropriate, for shipment and storage in accordance with standard commercial practices. All packing shall conform to requirements of carrier’s tariffs.
6. ORDER OF PRECEDENCE
a. These Terms and Conditions of Sale and attachments take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given; provided, however, that these terms and conditions are superseded by those appearing in any applicable TCIC quotation or purchase agreement between TCIC and Buyer. Acceptance by Buyer is limited to TCIC’s terms and conditions. Neither TCIC’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
b. Buyer’s purchase of TCIC products hereunder represents acceptance of TCIC’s terms and conditions of sale which constitute the entire understanding between the parties’ and supersede any previous communications, representations, or agreements by either party whether verbal or written. No change or modification of any terms or conditions shall be valid or binding on either party unless in writing and signed by an authorized representative of each party. 7. CHANGES AND CANCELLATIONS a. If Buyer issues a change order causing a delivery delay or cancels an order less than thirty (30) days prior to scheduled shipment, Buyer shall be subject to a fifteen percent (15°/0) charge based upon the list price of the affected computer products, and up to a fifteen percent (15%) charge, as determined by TCIC, for all other products. b. In addition, any such change in delivery dates caused by Buyer establishing a delivery date greater than thirty (30) days from Buyer’s original order date shall constitute a new order for the affected products in determining the appropriate list price.
c. If Buyer cancels an order for special equipment or services any time after the order is received by TCIC, Buyer may be subject to charges for costs incurred for any amount not to exceed the purchase price. Special equipment or services are those items not set forth in the manufacturer’s current price list.
8. ACCEPTANCE OF PRODUCTS
SOFTWARE PRODUCTS, WITHOUT EXCEPTION, ARE ACCEPTED UPON THE OPENING OF MEDIA PACKAGING. Hardware acceptance shall be accomplished by using applicable test procedures or programs established by TCIC. If installation by TCIC is not included in the purchase price, hardware acceptance shall be at the time of completion of final tests at the manufacturer’s plant. If Buyer has indicated at the time of purchase its intention to witness final tests, TCIC shall give Buyer at least two (2) days advance notice of the date of such tests. TCIC shall notify Buyer of any additional charges that may be associated with witnessing such tests. If installation by TCIC is included in the purchase price, acceptance shall occur at the initial installation site when TCIC demonstrates that the applicable diagnostic or verification programs work properly or the product is otherwise demonstrated to be in normal operating condition. If installation is scheduled or delayed by Buyer more than ten (10) days after delivery, Buyer shall be deemed to have accepted the products on the eleventh (11th) day from the date of delivery.
9. PATENT AND COPYRIGHT INDEMNITY
a. TCIC’s manufacturers and suppliers may, except as otherwise provided below, defend or settle any claim made or any suit or proceeding brought against Buyer so far as it is based on an allegation that any product furnished hereunder infringes a patent or copyright on the country in which Buyer takes delivery of said product, if notified promptly in writing and given information, assistance and the sole authority to defend or settle same, and the manufacturers may pay all damages and costs finally awarded therein against Buyer. In case said product in such suit held to infringe and the use of said product is enjoined, or in the case of a settlement as referred to above, the manufacturers shall have the option, at its own expense, to procure for Buyer the right to continue using said product; or replace same with a non-infringing product; or modify same so it becomes non-infringing; or refund the depreciated value of said product and accept return of same. TCIC shall have no liability for any infringement of patents, copyrights, trademarks or other intellectual property rights resulting from compliance with Buyer’s purchase order, designs, specifications, or instructions; from modification of said products; from use of said product or from use of said product with products not supplied by TCIC or the manufacturer.
b. The foregoing states the entire liability of the manufacturers, if any, for infringement of intellectual property rights by products furnished hereunder.
10. COPYRIGHTED MATERIALS
Unless otherwise agreed to in writing by TCIC, copyrighted materials (software and printed documentation) may not be copied except for archive purposes, to replace a defective copy, or for program error verification.
11. LICENSED PRODUCTS - SOFTWARE
With respect to those products which TCIC or the manufacturer licenses (software and related documentation) and which are supplied hereunder, the word “purchase” or similar or derivative words is understood to mean “license,” and “Buyer” or similar or derivative words is understood to mean “Licensee.” Title to licensed products shall remain with manufacturer, notwithstanding anything to the contrary herein. Licensing of manufacturer’s computer software shall be subject to standard manufacturer’s software terms applicable to the product.
12. WARRANTY TCIC
hardware products are only warranted to the extent of any warranty extended by the manufacturer against defects in materials and workmanship. If the manufacturer receives notice of such defects during the warranty period, the manufacturer shall, at its option, either repair or replace hardware products that prove to be defective. Software and firmware products that are designated for use with a hardware product, when properly installed on that hardware product, are warranted not to fail to execute their programming instructions due to defects in materials and workmanship. If the manufacturer received notice of such defects during the warranty period, the manufacturer shall repair or replace software media and firmware that do not execute their programming instructions due to such defects. Neither TCIC nor the manufacturer warrant that the operation of the software, firmware or hardware shall be uninterrupted or error free.
a. Supplemental Statement: Supplemental statements setting forth the duration and implementation of warranty and installation are available for most product types. Products for which these statements are applicable are sold subject to their provisions.
b. Duration and Commencement of Warranty Period: The warranty period for each product is specified in the supplemental statement of warranty and installation. The warranty period begins either on the date of delivery or, where the purchase price includes installation, on the date of installation. If Buyer schedules or delays installation more than ten (10) days after delivery, the warranty period begins on the eleventh (11th) day from the date of delivery.
c. Place of Performance: Within the manufacturer’s service travel areas, warranty and installation services for products installed by the manufacturer and certain other products designated by the manufacturer will be performed at Buyer’s facility at no charge. Outside the manufacturer’s service travel areas, warranty and installation service will be performed at Buyer’s facility only upon the manufacturer’s prior agreement and Buyer shall pay the manufacturer’s round trip travel expenses and applicable additional expenses for such services. On-site warranty services are provided only at the initial installation point. If products eligible for on-site warranty and installation services are moved from the initial installation point, the warranty will remain in effect only if Buyer purchases additional inspection or installation services at the new site. For product warranties requiring return to the manufacturer, products must be returned to a service facility designated by the manufacturer. Buyer shall prepay shipping charges (and shall pay all duties and taxes) for products returned to the manufacturer for warranty service. Except for products returned to Buyer from another country, the manufacturer shall pay for return of products to Buyer. Installation and warranty services outside the country of initial purchase are included only if Buyer pays international prices. Service outside the country of initial purchase is subject to the conditions regarding service travel areas and initial installation point described above.
d. Limitation of Warranty: The foregoing warranty shall not apply to defects resulting from:
1. Improper or inadequate maintenance by Buyer;
2. Buyer-supplied software or interfacing;
3. Unauthorized modification or misuse;
4. Operation outside of the environmental specifications for the product, or
5. Improper site preparation and maintenance.
THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED, OR IMPLIED. TCIC AND THE MANUFACTURER SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATIONS OF REMEDIES AND LIABILITY
THE REMEDIES PROVIDED HEREIN ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES. IN NO EVENT SHALL TCIC OR THE MANUFACTURER BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, OR FOR ATTORNEYS’ FEES. The foregoing limitation of liability shall not apply in the event that any TCIC product sold hereunder is determined by a court of competent jurisdiction to be defective and to have directly caused bodily injury, death or property damage; provided, that in no event shall TCIC’s liability for property damage exceed the greater of $50,000 or the purchase price of the specific product that caused such damage.
14. NUCLEAR AND AVIATION APPLICATIONS
TCIC products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance, operation or use of any nuclear facility nor for the flight, navigation or communication of aircraft or ground support equipment. Any Buyer using TCIC products for these applications agrees that, except as otherwise provided herein, TCIC and the manufacturers are not liable, in whole or in part, for any claims or damages arising from such use. If Buyer uses TCIC products for these applications, Buyer agrees to indemnify and hold TCIC and the manufacturer harmless from any claims for loss, cost, damage, expense or liability arising out of or in connection with the use and performance of TCIC’s products in such nuclear or aviation applications. Test equipment used in a static application that is not a functional part, component or assembly of an aircraft and is not attached to or utilized in the flight of an aircraft is not subject to this paragraph.
15. LIFE SUPPORT APPLICATIONS
Products sold by TCIC are not designed for use in life support equipment where malfunction of such product can reasonably be expected to result in a personal injury. TCIC customers using or selling such products for use in life support equipment do so at their own risk/agree to fully indemnify TCIC and the manufacturer of such product for any damages resulting from such use or sale.
a. Except as may be prohibited by the U. S. bankruptcy laws, in the event of any insolvency or ability to pay debts as they become due by a party hereto, or voluntary or involuntary bankruptcy proceeding by or against a party hereto, or appointment of a receiver or assignee for the benefit of creditors, the other party may elect to cancel any unfulfilled obligation hereunder.
b. Any required notices shall be given in writing at the headquarters address of each party or to such other address as either party may substitute by written notice to the other.
c. Buyer may not assign or transfer any of its rights, duties; or obligations herein without the prior written consent of the TCIC, and any purported attempt to do so shall be null and void. TCIC may assign or transfer its rights, duties and obligations herein.
d. TCIC’s failure to exercise any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights.
e. No U. S. Government Procurement Regulations shall be included hereunder or be binding on either party unless specifically agreed to in writing.
f. Both parties elect out of the United Nations Convention on the International Sale of Goods and choose the laws of Minnesota to apply.
g. Stenographic, typographical and clerical errors are subject to correction.
h. Unless otherwise agreed to by TCIC, Buyers who export from the U. S. products purchased hereunder assume all responsibility for obtaining any required export authorization. Buyer shall not export or re-export technical data or products supplied by TCIC, directly or through others, or the direct product of such data, to the proscribed countries listed in Section 379.4 and associated or successor sections of the U. S. Export Administration Regulations unless properly authorized by the U. S. Government.
i. The laws of the State of Minnesota shall govern any dispute between the parties, including any regarding the enforcement, interpretation or validity hereof. The parties agree that any dispute relating to the products sold hereunder shall be subject to the exclusive jurisdiction and venue of the courts within the State of Minnesota, and that arbitration of any such dispute is prohibited.
j. Headings used throughout this agreement are for reference purposes only and shall not be construed as a substantive portion of this agreement.
The Seller or Supplier identified on the first page of this Purchase Order is referred to as “Seller”. Twin Cities Industrial Control, Inc. is referred to in this Purchase Order as “Purchaser”.
Acceptance of Purchase Order. Seller shall manifest acceptance of this Purchase Order by executing the Purchase Order upon terms as stated. Shipment of goods shall constitute acceptance of this Purchase Order and satisfy this requirement. Unless Seller notifies Purchaser of any inaccuracies in this Purchase Order or its inability to meet any terms of this Purchase Order within three (3) days after Seller receives this Purchase Order, acceptance of Purchase Order will be assumed and Seller held to all terms and conditions stated herein.
Entire Agreement. This Purchase Order, including these Terms and Conditions, any specifications, and any additional terms and conditions incorporated into and attached hereto or referenced herein, constitute the entire, exclusive and binding agreement between the parties. Unless expressly accepted by Purchaser in writing, no other terms and conditions in conflict with, or in addition to, those stated herein, shall be binding on Purchaser.
Performance. Seller shall at its own risk and expense furnish the goods, materials and/or equipment identified on the first page of this Purchase Order, all of which is referred to as “Goods”. The Goods shall be delivered by the dates specified in this Purchase Order and in strict compliance with all of the provisions of this Purchase Order.
Governing Law; Arbitration. The terms and conditions provided herein and the rights of all the parties hereunder shall be construed under and governed by the laws of the State of Minnesota. All disputes under this Purchase Order shall be resolved by arbitration conducted in Hennepin County, Minnesota.
Delivery. The Goods shall be shipped as specified on this Purchase Order or as otherwise agreed by Seller and Purchaser. If shipment terms are not otherwise specified, Goods shall be shipped FOB to Purchaser’s location. Seller shall be responsible for the Goods and bear all risk of loss until the Goods are received and accepted by Purchaser.
Inspection and Acceptance of Goods. All Goods shall be subject to Purchaser’s inspection at any time. Purchaser may accept or reject any or all goods and services within a reasonable time after receipt by Purchaser. The making or failure to make any inspection of, or payment for or acceptance of the goods and services shall in no way impair Purchaser’s right to reject or revoke its acceptance of nonconforming goods and services, or to avail itself of any other remedies to which Purchaser may be entitled.
Warranties. Seller warrants that all the goods and services furnished hereunder shall be produced and furnished in compliance with all applicable federal, state and local laws, orders and regulations and shall conform to all specifications stated in this Purchase Order or in any related request for quotations or similar document. Seller warrants that the Goods will be merchantable, fit for their intended purposes, and free from all defects in materials, workmanship and design, and do not violate or infringe any patents, trademarks or copyrights. In addition, Purchaser shall have the benefit of all express warranties made by the Supplier. No disclaimer or limitation of warranties by the Supplier shall be effective unless it is in a writing signed by Purchaser. All of Seller’s warranties shall apply to Purchaser and Purchaser’s customers.
Payment. Unless otherwise specified, the specified price for the Goods shall be paid at the time specified in this Purchase Order or as otherwise agreed to in writing by Seller and Purchaser. The price for the Goods is the complete price for the Goods and all related materials and services. There are no other costs or expenses other than the specified price, including without limitation costs and expenses for shipping, overhead, taxes, insurance and royalties.
Termination. Purchaser shall have the right to terminate, cancel or suspend this Purchase Order, in whole or in part, by giving written notice to Seller. Except in the case of termination for breach, allowance will be made for normal and reasonable expenses incurred by Seller prior to receipt of the notice.
Indemnity. Seller shall indemnify Purchaser, its directors, officers, agents and employees against (i) Seller’s breach of any covenant or warranty contained in this Purchase Order and (ii) all loss, damage, expense and liability resulting from injury to or death of any person, including and without limitation, employees of Purchaser or Seller, or injury to property or any claim of infringement of any intellectual property rights, arising out of or in any way connected with Seller’s performance of this Purchase Order. Seller shall, at Purchaser’s request, defend any action, claim or suit asserting a claim covered by this indemnity. Seller shall pay all costs incurred by Purchaser in enforcing this indemnity including, without limitation, Purchaser’s reasonable attorney’s fees.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING CONTAINED IN THIS PURCHASE ORDER TO THE CONTRARY, PURCHASER’S LIABILITY FOR CLAIMS OR DAMAGES UNDER THIS PURCHASE ORDER SHALL NOT EXCEED THE TOTAL AMOUNT PAYABLE BY PURCHASER HEREUNDER FOR GOODS DELIVERED BY SELLER. PURCHASER SHALL NOT BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE PERFORMANCE (IN WHOLE OR PART).
Independent Contractor. Seller is acting as an independent contractor in performing this Purchase Order. Neither Seller nor any of Seller’s employees, subcontractors or agents for hire shall be construed as employees, agents, partners or joint venturers of Purchaser in any respect whatsoever.