These Terms and Conditions are part of the contract between Tuf-Lok. (Seller) and the Buyer named in the proposal submitted by Seller. The formation of a contract between Seller and Buyer is expressly conditioned upon inclusion of these Terms and Conditions # T L060118
PAYMENT TERMS.
The price of the scope of supply and the equipment and services furnished by Seller under the Buyer’s purchase order/contract (hereinafter collectively referred to as the “SUPPLY”) as referenced in Seller’s proposal, shall be payable in currency of the United States at par at 1125 Willow Lake Boulevard, St. Paul, Minnesota 55110. Payment schedule is per Seller’s proposal to Buyer. Prices quoted are FOB St. Paul, MN and shipping point(s). Seller’s price does not include sales tax. Sales tax will be invoiced if applicable and required of Seller to collect. If not required of Seller, Buyer shall assess use tax. If Buyer provides a tax exemption certificate and this purchase is later found out to be a taxable sale that the Seller is required to pay taxes on, Seller will invoice customer for all sales tax due. If Buyer is delinquent, breaches or defaults in payment or otherwise, Seller reserves the right to modify the payment schedule and shall be entitled to recover from Buyer all attorney’s fees, legal expenses and costs incurred by Seller to enforce the provisions of the contract.
RISK OF DAMAGE AND LOSS.
Seller shall be responsible for damage to or loss of the equipment that is part of the SUPPLY or any part thereof until delivery to the common carrier, unless freight costs are pre-paid and added to the equipment invoices, at which time the risk of damage to or loss of the SUPPLY or any part thereof shall pass to Buyer. Buyer agrees to thoroughly and completely inspect the SUPPLY upon arrival and to file a claim with the common carrier for any damage or loss. Seller reserves the right of possession and title to the SUPPLY until the purchase price is paid in full, as provided herein.
TITLE AND POSSESSION.
Title and right of possession of the SUPPLY shall remain with Seller until full payment of the purchase price according to the terms of the proposal. The SUPPLY shall not become a part of any real estate by reason of being attached thereto or installed thereon. If Buyer shall default on payment, Seller may elect to exercise its lien upon said SUPPLY as provided by this paragraph and the Minnesota Uniform Commercial Code. Buyer hereby grants to Seller an irrevocable license to enter upon any real estate owned or leased by Buyer for the purpose of removing said SUPPLY, and Buyer shall pay all expenses of removing said SUPPLY including the damage, if any, to real and personal property to which it is affixed.
GOVERNING LAW AND FORUM.
This contract will be governed by and construed under the laws of the State of Minnesota, U.S.A. without regard to conflicts of laws. CANCELLATION AND ORDERS PUT ON HOLD BY BUYER. Orders that are changed or cancelled or put on hold by Buyer after order acceptance by Seller may result in increased cost to Buyer and/or schedule delay. Also, when Buyer cancels, terminates or puts an order on hold, Seller is entitled to recover from Buyer all costs incurred by Seller through the cancellation or hold notification date.
LIMITED WARRANTY.
For a period of one (1) year from the date of shipment, Seller warrants that the SUPPLY sold by Seller will perform and function within the specifications, conditions and limitations published by Seller in its proposal to Buyer. Seller’s liability under this Warranty is expressly limited to correction within a reasonable time, using Seller’s best efforts, of any defects or errors, which result in the Seller’s equipment not performing or complying to meet the specifications as defined in Seller’s proposal including the design of the equipment that is part of the SUPPLY and the repair or replacement of any parts of the SUPPLY which are defective in material or workmanship by making available FOB Seller’s plant a repaired or replacement part, provided such defective parts are returned to Seller at Buyer’s expense.
Correction of non-conformities in the manner and for the period of time provided above shall constitute fulfillment of all liabilities of Seller to Buyer, whether based on contract, negligence or otherwise, with respect to the SUPPLY.
This Warranty shall apply only if the SUPPLY is installed and operated according to all specifications, drawings, operating manuals, maintenance instructions, and other conditions published by Seller; has been subjected to normal use for the purpose for which the SUPPLY was proposed and designed; has not been subjected to misuse, negligence, or accident; and the SUPPLY has not been altered. Seller does not warrant: (a) defects caused by failure to provide a suitable fit for purpose installation environment; (b) damage caused by use of the SUPPLY for purposes other than those for which it was designed; (d) damage caused by unauthorized attachments or modifications to the SUPPLY; (f) damage as a result of any other failure not addressed in the warranty herein; (g) any other abuse or misuse by Buyer; or (h) expenses for field removal and reinstallation labor. All liabilities or performance deficiencies associated with or caused by a Buyer’s supplied components or labor are the sole responsibility of Buyer. Furthermore, if Buyer modifies Seller’s design, all warranties are disclaimed.
WARRANTY DISCLAIMERS AND EXCLUSIONS. THE WARRANTY HEREIN IS IN LIEU OF ALL OTHER WARRANTIES AND SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES
DAMAGES EXCLUSION.
IN NO EVENT SHALL EITHER PARTY FOR ANY REASON BE LIABLE TO THE OTHER PARTY, INCLUDING THIRD PARTIES, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, DELAYED PRODUCTION, LOSS OF PAST OR PROSPECTIVE LOST PROFIT OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES IN TORT OR IN CONTRACT FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ERRORS AND OMISSIONS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE GOODS AND SERVICES PROVIDED UNDER THE CONTRACT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THOSE PROVISIONS OF THE UCC AND OTHER LAWS THAT PERMIT THE IMPOSITION OF CONSEQUENTIAL DAMAGES ARE DISALLOWED.
The remedies set forth herein are exclusive, and the liability of Seller with respect to the SUPPLY or any act or omission in connection therewith, excluding property damage and injury/death liability, whether in a contract, tort, or under any warranty or otherwise, shall not, under any circumstances, exceed the actual price of the SUPPLY paid to Seller.
INDEMNIFICATION.
Buyer will defend, indemnify and hold Seller harmless from all liability, costs and expenses including all attorneys’ fees, and consequential damages which Seller may incur or for which Seller may be held liable in connection with any damage to any property or injury or death to any person resulting from: (a) Buyer’s failure to determine and inform Seller of any hazards associated with Buyer’s process, materials handled or environment and/or any (b) Buyer’s own negligence. Where personal injury, death, or loss of or damage to property is the result of joint negligence, gross negligence or willful misconduct of Buyer and Seller, the indemnitor’s duty of indemnification shall be in proportion to its allocable share of such joint negligence, gross negligence or willful misconduct.
MODIFICATION.
No provision of this transaction or these Terms and Conditions may be waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties. .
SEVERABILITY.
If any provision of these Terms and Conditions is held by any court to be unenforceable, the balance of the provisions of the Terms and Conditions shall remain in full force and effect.