NORTHWIRE INC: TERMS AND CONDITIONS OF SALE
APPLICATION OF TERMS; ENTIRE AGREEMENT. The following terms and conditions of sale (these "Terms") shall govern the sale by Northwire, Inc. ("Seller") to the entity or individual ("you" or "Buyer") named on the invoice, quotation or order acknowledgement (hereinafter referred to as "Order") that will be provided to Buyer for the sale of products sold by Seller (the "Product(s)"). These Terms constitute the complete and exclusive agreement between Seller and Buyer pertaining to the Products identified in the Order. Buyer agrees to be bound by and accepts these Terms and acknowledges that any order received and accepted by Seller shall be construed as an acceptance of Seller's offer to sell the Products in accordance with these Terms. No different, additional or inconsistent terms or conditions specified in any acknowledgement, purchase order, confirmation or other document pertaining to the Products shall be binding on Seller unless specifically agreed to by Seller in writing; provided, however, that specific information regarding quantities, delivery dates and other miscellaneous information used to implement the purchase and sale of the Products shall apply to the extent not inconsistent with these Terms. No previous course of dealing between the parties or trade usage may be used to interpret, limit, or otherwise impair the operation of these Terms. Subject to the foregoing, all Orders received by Seller are subject to revision and possible rejection by Seller within seven business days after its receipt of the same at its normal place of business.
Unless revised or rejected, any such Order shall become a firm agreement to purchase upon the passage of such seven days.
QUOTATIONS AND PRODUCTS AVAILABILITY. For product directly ordered from the Northwire website, prices remain valid while they are listed and offered on the website. The price of the product directly ordered from the Northwire website will be the price posted on the website as of the date of the order. For product for which a quote is specifically requested, the price quoted remains valid for the duration stated in the written quote. If no expiration date or duration is stated in the written quote, the Product price is valid for fourteen (14) calendar days from the date of written quote. Product availability may be limited. Products may not be available for immediate Delivery (as defined below). Seller reserves the right, without liability or prior notice, to revise or cease to make available any or all Products. The price of the Products ordered will be the price posted on the website as of the date of the Order.
ORDERS. Orders are not binding on Seller unless accepted by Seller. Acceptance is determined at the sole discretion of Seller and Orders can be rejected for any reason at any time. If Buyer requests changes in the Products or delays progress of the manufacture or shipment of the Products, the contract price shall be adjusted to reflect increases in the selling price caused thereby. Seller may adjust the manufacturing quantity to compensate for processing losses. The Order Acknowledgement Buyer receives will show the manufacturing quantity. Seller will invoice for the actual quantity shipped.
PAYMENT TERMS. Except for direct purchases from the Northwire website, Buyer shall pay invoices thirty (30) calendar days from the date of the invoices unless Seller has agreed to other terms in writing or unless Seller requires advance payment, C.O.D. payment or credit card payment. For direct purchases from the Northwire website, the only options are advance payment via PayPal or credit card payment. International deliveries require irrevocable letters of credit, or payment by Visa or MasterCard, unless Seller has agreed to other terms. Buyer is responsible for any fees associated with electronic transfer of funds. Payment via credit card is subject to the approval of the financial institution issuing your credit card. If the credit card information that Buyer submits is incorrect or invalid, Seller will not be able to process the Order. Seller has no liability if your financial institution fails to accept or honor your credit card for any reason. All quotes and sales are in U.S. dollar currency.
CANCELLATIONS. Buyer may not cancel or change an Order without the written consent of Seller.
SHIPPING; TAXES. All Products purchased by Buyer will be shipped F.O.B. Seller's facilities. When applicable, taxes will be added to the invoice as a separate charge to be paid by Buyer prior to Delivery. Prices on Products specified do not include any city, state or federal excise taxes, including, without limitation: shipping and handling charges; taxes on manufacture; sales, use, receipts, excise, gross receipts, gross income, occupation, import and export taxes or similar taxes; or customs charges or duties or other charges imposed by governmental entities. Buyer is responsible for all such taxes and charges unless Seller has agreed to other terms in writing.
TITLE AND RISK OF LOSS; DELIVERY. Title and risk of loss shall pass to Buyer upon Shipment from Seller's facility. "Shipment" shall mean the point at which Seller or Seller's agent turns over possession of the Products to any of the following: Buyer, Buyer's employee or agent, a common carrier, or Buyer's warehouse, and not necessarily the final destination shown on the Order. Seller may deliver the Products ordered in installments. Any Shipment or delivery dates given by Seller are estimates only and Seller is not liable for any loss, damage, cost or expense for any failure to deliver in accordance with the given Shipment or delivery date.
LIMITED WARRANTY. Seller warrants that the Products will be free of defects in material and workmanship for a period of thirty (30) days from the date of Delivery (as defined above). In the event that a defect exists, the Buyer must notify Seller in writing at the address shown upon the Order within ten (10) days from the date the defect is discovered. At its discretion, Seller will (a) repair the Product, (b) exchange the Product, or (c) refund the purchase price of the Product. Any repair or replacement shall not extend the period within which such warranty can be asserted. Buyer agrees to return to Seller at Buyer's expense any Product for which a replacement or refund is provided by Seller. THE FOREGOING WARRANTY IS THE ENTIRE AND EXCLUSIVE WARRANTY REGARDING THE PRODUCTS AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. EXCEPT AS PROVIDED HEREIN, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS BEING SOLD, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER, ITS SALES REPRESENTATIVES, DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY, AND NO SUCH PERSONS HAVE AUTHORITY TO MODIFY ANY ASPECT OF ANY WARRANTY OR CREATE ANY OTHER WARRANTIES. PRODUCTS ARE SOLD WITH THE EXPRESS UNDERSTANDING THAT THEIR LIFE AND FITNESS FOR PURPOSES ARE INDETERMINATE AND LARGELY DEPEND ON APPLICATION AND OPERATING CIRCUMSTANCES. NO WARRANTY IS MADE WITH RESPECT TO EQUIPMENT, ACCESSORIES, COMPONENT PARTS OR AUXILIARY EQUIPMENT NOT MANUFACTURED BY SELLER. SELLER SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE FOR MODIFICATIONS, ALTERATIONS, MISUSE, MISAPPLICATIONS, INSTALLATIONS OR REPAIRS MADE TO SELLER'S PRODUCTS BY BUYER OR OTHERS OR FOR DAMAGE CAUSED THERETO BY NEGLIGENCE, ACCIDENT, OVERLOADING OR IMPROPER USE BY BUYER OR OTHERS. THE REMEDY OF REPAIR, REPLACEMENT OR REFUND PROVIDED FOR HEREIN IS THE CUSTOMER'S EXCLUSIVE REMEDY IN THE EVENT OF A BREACH OF THIS LIMITED WARRANTY.
LIMITATION OF DAMAGES. If Buyer makes a valid and timely claim under the LIMITED WARRANTY section above, Seller's liability and Buyer's remedies under these Terms shall be limited solely to the remedies described in that section. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE SALE OR USE OF THE PRODUCTS, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND THE LIABILITY OF SELLER IN CONNECTION WITH SUCH SALE OR USE OF ANY PRODUCTS SHALL NOT EXCEED THE PRICE OF THE PRODUCTS ON WHICH SUCH LIABILITY IS BASED. DAMAGES LIMITED BY THIS SECTION INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OF THE PRODUCTS OR ANY HARDWARE SYSTEM ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR SERVICES, DOWN TIME, BUYER'S TIME, CLAIMS OF THIRD PARTIES, INCLUDING BUYERS, INJURY TO PERSONS OR PROPERTY, AND PAIN AND SUFFERING OF ANY KIND.
INTEREST AND FEES. In the event of any dispute arising out of the Order, these Terms or the transaction described therein, in addition to an award of damages, the Seller shall be entitled to recover: (a) pre-judgement interest on any amount awarded at a rate of 1 % % per month, (b) all expenses of arbitration and litigation, including without limitation all fees and court costs; and (c) all attorney's fees and costs incurred regardless of whether such fees or expenses are incurred before or after the initiation of arbitration or litigation.
INTELLECTUAL PROPERTY OWNERSHIP. Seller shall retain all rights, title and interest in and to any and all patents, copyrights, trademarks and other intellectual property and proprietary rights and the goodwill associated thereby pertaining to the Products, as well as any associated developments Seller creates, realizes or reduces to practice during Seller's fulfillment of the Order. Except as otherwise particularly provided, no license, transfer or assignment of proprietary rights shall occur as a result of these Terms. Any nameplates or other form of identification which Seller has affixed to or marked upon any of the Products may not be removed or altered by Buyer without Seller's written consent.
INDEMNIFICATION; SPECIAL ORDERS. Seller shall defend, indemnify and hold harmless Buyer and Buyer's successors, assigns and customers from and against claim or cause of action alleging that the design, use or construction of the Products infringes a patent or any proprietary rights of others, provided that such infringement does not result from (a) Buyer's modification of the Products; (b) unauthorized use of the Products; (c) incorporation of the Products into another product or use of such goods with another product; or (d) a specification, design, modification or drawing provided to Seller by Buyer. Buyer shall defend, indemnify and hold harmless Seller and Seller's successors, assigns and customers from any claim or cause of action arising from subparts (a) through (d) of this section. Seller shall have the right to employ, at Buyer's expense, counsel on Seller's own behalf and shall have the right to participate in the defense of such suit. In the event of a claim giving rise to Seller's indemnification obligation hereunder, Buyer shall give Seller immediate notice in writing of any claim or institution or threat of suit, permit Seller to defend or settle the same, and provide Seller with reasonable assistance in such defense or settlement.
FORCE MAJEURE. Seller shall not be liable if it is unable to perform any of its obligations contained in these terms and conditions due to, directly or indirectly, the failure of Seller's supplier to deliver as promised; sabotage; failure or delays in transportation, utility service or communication systems; any labor or industrial dispute; shortages of labor, fuel, supplies or equipment; war; flood; explosion; natural disaster or terrorism; or any other event beyond the control of Seller.
GOVERNING LAW; ARBITRATION. The sale of Products by Seller to Buyer shall be governed by the laws of the State of Minnesota, without regard to its conflict of law provisions. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply. In the event of any controversy or claim arising out of or relating to this transaction, the parties agree to binding arbitration in Hennepin County, Minnesota pursuant to the then-current Commercial Arbitration Rules of the American Arbitration Association except as such rules may contemplate state court jurisdiction. The matter shall be heard by a single arbitrator and the award of the arbitrator shall be final and binding upon the parties and judgement thereon may be entered in a state or federal court sitting in Hennepin County, Minnesota, United States of America. The arbitrator will not have the authority or power to amend or modify these Terms, nor to fashion any relief or remedy that would have the effect of modifying or amending these Terms or of creating additional rights or obligations. The arbitrator will have no power or authority to award punitive or exemplary damages.
EXPORT CONTROL. Products purchased or received under these terms and conditions shall be subject to export laws and regulations of the United States of America, and Buyer agrees to comply with such export laws and regulations.
SECURITY INTEREST. Seller reserves a purchase money security interest in all Products and any proceeds thereof until any and all payments and charges are paid in full. Buyer shall reasonably assist Seller in perfecting such security interest.
NO ASSIGNMENT. Buyer may not assign its rights or obligations under these terms and conditions without the express written consent of Seller.
NOTICES. All notices required to be given under these Terms shall be given in writing and shall be either (a) personally delivered or sent by first class mail, postage prepaid, to the party to whom the notice is to be given at the address shown upon the Order, or (b) sent electronically by fax or through the Internet. If notice is sent by mail, it shall be deemed effective the second business day after deposit in the United States mail. If notice is sent electronically, it shall be deemed effect when sent. Any party may change its address for notices by giving formal written notice to the other party, specifying that the purpose of the notice is to change the party's address.
SEVERABILITY. If any provisions of these Terms shall be held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remaining provisions shall not be affected or impaired thereby.
WAIVER. Any waiver of compliance with the Terms must be in a writing executed by both parties. No such waiver by Seller shall be deemed a waiver of any other term or condition herein nor shall any such waiver apply to any instance other than that to which the waiver is particularly directed.
SELLER. For the purposes of these Terms, "Seller" means Northwire, Inc. and any of its successors and assigns and any surviving, resulting, or transferee corporation, partnership, or other business entity, or any one or more of them, and, for the purposes of indemnification by Buyer, assessment of damages against Buyer, or relief from liability for damages to Buyer, shall in addition to the foregoing be deemed to also include all of Seller's affiliates and subsidiaries, and any of their respective equity holders, directors, officers, employees, agents and sales representatives, unless and only to the extent that the context clearly indicates otherwise.
QUESTIONS. For any questions regarding Buyer's Order, Seller can be reached toll free at 800.468.1516 and international at + 1 715.294.2121.
QB\137603.00023\10157768.6 rev 12/28/15