APPLICABILITY – Extron Co, a Minnesota corporation located at 15400 Medina Rd, Minneapolis, MN 55447 (“Seller”) is a manufacturer and service provider. All transactions in which equipment and products (“Products”) and services (“Services”) are sold or provided to or for the benefit of any individual or entity who purchases Products or Services from Seller (“Buyer”), whether or not such other person deals directly with Seller or its agent, are governed by these terms and conditions (“T&Cs”), unless and to the extent otherwise expressly and specifically agreed to by Seller in a purchase order or other signed written agreement between Seller and Buyer in which Seller separately initials the different or additional terms. Placement of an order with Seller shall constitute acceptance of these terms and conditions of sale by the Buyer. These T&Cs are subject to change by Seller without prior written notice at any time, in Seller’s sole discretion. Buyer can find the most up to date T&Cs on Seller’s website. A waiver or repeated waivers of any provision or provisions hereof by Seller shall not constitute a waiver of the same provision or provisions or any other provisions in any other instance and shall not impair the rights of Seller to enforce any of these T&Cs subsequent to such waiver. If any change to any law, rule, regulation, order, code, standard or requirement impacts Seller’s obligations or performance under these T&Cs, Seller will be allowed a change order for an equitable adjustment in the price and time of performance.
QUOTATIONS AND PURCHASE PRICE – Seller’s price quotations will be firm from the date of quotation for 30 days unless an earlier or later date is listed on Seller’s proposal. Prices do not include any sales, use, excise, or other tax, fee or charge of any nature or any shipping, delivery, duty, custom, inspection or testing fee, or insurance costs. Additional taxes and fees will be paid by Buyer in addition to the prices quoted or invoiced.
PAYMENT TERMS – Payments are due in U.S. funds, Cash on Delivery (COD), based on FOB Seller’s plant, unless otherwise agreed to by the parties. Payment is due net 30 days of the invoice date. Special orders or projects may require a down payment from Buyer. The lower of 1.5% per month or the highest rate permissible under applicable usury law service charge will be applied to all overdue accounts. All orders are subject to credit approval by Seller’s accounting department. Engineering development or software projects that extend over multiple months may be subject to monthly progress billings. Buyer will be responsible for collection costs (including attorneys’ fees whether or not suit is commenced) incurred with respect to invoices not paid when due. Seller may suspend or terminate further performance under a purchase order or other agreements with Buyer upon notice for non-payment of invoices. If, in the reasonable judgment of Seller, the financial condition of Buyer does not justify the terms of payment specified, Seller may require payment in advance, payment security satisfactory to Seller. All prices shall be subject to the addition of any existing or future tax or governmental charge upon the engineering services, production, shipment, installation, sale or use of the Products or Services described herein to the extent that Seller is or shall be required by law or regulation to pay or collect the same. The amount of such taxes shall be paid to Seller immediately upon request or, in lieu thereof, a tax exemption certificate in form satisfactory to the taxing authority presented to Seller.
ORDER ACCEPTANCE AND SHIPPING – Either written acceptance or commencement of the Services or shipment of the Products by Seller, whichever occurs first, will be deemed effective acceptance by Seller of Buyer’s order. All Product sales are FOB Seller’s plant in Minneapolis, MN, USA. FOB is defined as Free On Board, Buyer to pay all freight, delivery and associated charges for transporting the Products. Title and all risk of loss will pass to Buyer once Products have been shipped. Shipping dates are approximate and Buyer acknowledges that all lead times are estimates only. Seller reserves the right to make partial shipments and invoice for such partial shipments.
CANCELLATIONS AND DELAYS
CANCELLATIONS – Accepted orders or any part thereof, including all blanket or standing orders, may not be cancelled by Buyer without at least 60 days’ prior, written notice to and approval of Seller, which may be conditioned upon payment of cancellation fees and recovery of costs incurred. Buyer agrees to pay Seller standard contract labor rate for all labor incurred and all raw materials purchased for that order, including any restocking charges incurred, plus applicable handling fees and costs for all finished goods and work in progress. In addition, Buyer is responsible for all Products ordered and held in inventory pursuant to a standing purchase order.
DELAYS – Seller will not be liable for any delays caused by its suppliers. Seller will not be liable for delays, in whole or in part, caused by riots, strikes, labor disputes, shortages or curtailments of raw materials, natural disasters, fires, lack of transportation, accidents, disease, pandemic, government action, or any other contingency beyond their reasonable control.
INSPECTION AND ACCEPTANCE – Buyer shall promptly inspect all shipments after arrival and notify Seller in writing within 10 days of arrival of any shortages or nonconformity. Claim notices must be accompanied by reference to Seller’s bill of lading and factory order numbers. Buyer agrees to provide pictures and other requested support for claims and allow Seller a reasonable opportunity to inspect Products to enable Seller to verify the alleged shortage or nonconformity. Buyer’s failure to timely notify Seller in writing of any alleged shortage or nonconformity constitutes a waiver of claims of such claims. Buyer’s rejection of any Products shall not shift risk of loss of such Products until the Products is returned to Seller, freight prepaid, pursuant to Seller’s written authorization. Any claims for damage or shortage in transit must be filed by Buyer against the transportation company.
CONFIDENTIAL INFORMATION – All information provided to Buyer relating to price, design, performance, size, and type of Products is considered confidential information and is not to be shown or disclosed or made available to others without the prior written consent of Seller.
DEFAULT BY BUYER – In the event Buyer becomes insolvent, bankrupt, or defaults in any term or condition of these T&Cs or any other agreements between Seller and Buyer, the entire unpaid portion any amounts due by Buyer, without notice or demand become immediately due and payable. In any such event, Seller at its option, without notice or demand shall be entitled to any one or more of the following remedies: 1) the balance of all amounts due under this and all other agreements, plus reasonable attorneys’ fees (calculated on either an hourly basis or contingent fee basis) and out-of-pocket expenses and interest; 2) to enter any place where the Products are located and to take immediate possession of and to remove the Products, with or without legal process; 3) to retain all payments previously made on this or other agreements; or 4) to resell the Products at a public or private sale without notice or demand for and on behalf of Buyer, and to apply the net proceeds from the sale after deduction from the sale price of all expenses of such sale and all expenses of retaking possession, repairs, storage charges, taxes, liens, collection and attorneys’ fees and all other expenses in connection therewith to the balance then due to Seller and to receive from Buyer the deficiency between such net proceed of sale and the balance. Buyer hereby waives all trespass, damage and other claims resulting from any such entry, repossession, removal, retention, repair, alteration and sale. The remedies provided in this Section are in addition to and not in limitation of any other rights of Seller.
INDEMNITY – Buyer agrees to indemnify Seller from and against all third-party claims, damages, expenses, liabilities, and losses, including without limitation attorney’s fees and costs, whether or not a lawsuit or other action is filed, alleging bodily injury, death, or damage to a third party’s tangible property caused by Buyer’s negligent acts or omissions or other wrongful conduct or breach of Buyer’s obligations under these T&Cs, except to the extent such damages or losses are directly caused by the gross negligence or willful misconduct of Seller. Buyer shall provide Seller with prompt written notice of any third-party claims covered by this Section. Seller has the unrestricted right to select and hire counsel and the exclusive right to conduct the legal defense and/or settle the claim on the Buyer’s behalf. Buyer shall not make any admission(s) which might be prejudicial to Seller and shall not enter a settlement without the express permission of Seller.
LIMITED WARRANTY – Seller warrants to the original purchaser all Products manufactured by Seller to be free of defects in material and workmanship under normal use and service and will conform to Buyer’s specifications for a period of 12 months from the date of shipment from Seller. Seller will pass through all manufacturers’ warranties for Products and parts not manufactured by Seller. This warranty is applicable only if the Seller’s Product is properly installed, operated and maintained in accordance with factory recommendations and procedures in accordance with standard industry practices and in accordance with any user or operator’s manuals. The warranty does not extend to damage or wear caused by misuse, negligence, accident, corrosion, modification by Buyer, faulty installation, loss of product, or tampering in a manner to impair normal operation of the Products. In the event a Product is reported in writing to Seller to be defective within the above-stated warranty period, Seller will repair or replace the defective parts if the Product is shipped prepaid to Seller’s designated facility pursuant to a return authorization number by Seller which is prominently placed upon the shipping documents and packing container, and if such Product is found by Seller’s inspection to be truly defective in workmanship or material. If Seller’s inspection does not disclose any defect in workmanship or material, repairs will be made at a reasonable charge to Buyer. This warranty is conditioned on Buyer not being in default of any obligation owed to Seller, including payment obligations, and Seller may void this warranty if Buyer is in default. THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, DESIGN, AND NONINFRINGEMENT, AND THE BUYER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO BUYER WITH RESPECT TO THE QUALITY AND FUNCTON OF THE PRODUCTS OR SERVICES HEREIN SOLD.
RECALLS – If any governmental authority seizes or orders a recall of any Products or if Seller deems it necessary to recall any Products, Seller will, at Seller’s option, either: (a) replace or repair, at no cost to Buyer, the seized or recalled Products or parts with an equal quantity of complying Products; or (b) refund the purchase price paid by Buyer for such Products.
LIMITATION OF LIABILITY – IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE), SHALL SELLER OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF EQUIPMENT, LOSS OF DATA, DAMAGE TO, OR LOSS OF USE OF, ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE OR REPLACEMENT PRODUCTS, FACILITIES, SERVICE OR POWER, DOWN TIME COSTS, OR CLAIMS OF BUYER’S CUSTOMER FOR SUCH DAMAGES. SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND (INCLUDING NEGLIGENCE) FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE PRODUCTS OR SERVICES FURNISHED HEREUNDER, SHALL IN NO CASE EXCEED THE PRICE OF THE SPECIFIC PRODUCT OR SERVICE WHICH GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE LIMITED WARRANTY PERIOD, AS HEREINABOVE STATED.
INTELLECTUAL PROPERTY – Unless Seller and Buyer otherwise agree in writing, Seller will have the right to use all ideas, concepts, specifications, and other materials conceived of or produced in connection with the Products or Services in Seller’s business and all intellectual property rights and title to all copyrights, patents, know-how, designs (including drawings, plans, specifications and application software) to Products and inventions (whether registered or not), including all enhancements and improvements, shall vest in and be the exclusive and absolute property of Seller and shall not constitute “work made for hire” as defined in U.S. Copyright laws. Title to firmware will also remain with the Seller or the respective equipment manufacturer. Seller will grant to Buyer a perpetual, non-exclusive, non-transferable license to use application software in the application for which the software was designed for the specified Products.
ENTIRE AGREEMENT – These T&Cs are intended by the parties as the final expression of their agreement and is the complete and exclusive statement of the terms of their agreement and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements, and understandings, whether oral, written, expressed or implied.
ADDITIONAL TERMS – Seller’s failure to object to the provisions contained in a purchase order or other communications shall not be deemed a waiver of the T&Cs nor acceptance of such Buyer provisions. If one or more of these provisions in the T&Cs is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of these T&Cs, which will remain valid and enforceable. All matters relating to or arising from dealings between Seller and Buyer will be governed and controlled by the laws of the State of Minnesota, notwithstanding conflict of law provisions, whether based in contract or tort, including statutes of limitations. Buyer agrees to bring any claim, cause of action, suit or demand allegedly arising out of or related to the transactions between Seller and Buyer exclusively in the state or federal courts located in Minnesota. Buyer irrevocably consents to jurisdiction in, and venue of such courts. BUYER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH DEALINGS WITH SELLER.
