1. Acknowledgment and acceptance of any order is expressly
limited to and made conditional upon the terms and conditions contained herein.
Any of Buyer's terms and conditions which are in addition to or differ from
those contained herein which are not separately agreed to in writing (except
additional provisions specifying quantity, character of the products ordered
and in shipping instructions) are hereby objected to and shall be of no effect.
Objection to any of the Terms and Conditions herein shall be deemed to have
been waived if written notice of such objection is not received by Dynetic
Systems (Seller) within fifteen (15) days of the date of acknowledgment of
any order. Buyer will in any event be deemed to have assented to all Terms
and Conditions contained herein if any of the products described herein is
accepted. General. Except as may be expressly provided to the contrary in
writing the provisions of this contract are for the benefit of the parties
hereto and not for any other person. This instrument contains the entire and
only agreement between the parties hereto relating to the subject matter hereof,
and any representation, affirmation of fact, and course of prior dealings,
promise or condition in connection therewith or usage of the trade not incorporated
herein shall not be binding on either party. No change, modification, revision,
discharge, abandonment or waiver of these standard conditions of sales shall
be binding upon Seller unless made in writing and signed on its behalf by
an authorized employee.
2. WARRANTY: A. General. Seller warrants that its products
will at the time of delivery be free of defects in material and workmanship
and will conform to Seller's applicable specifications or, if appropriate,
to specifications accepted by Seller therefore. Seller's obligation or liability
hereunder shall be limited to either refunding the purchase price of repairing,
or replacing, at Seller's option, any products for which written notice of
nonconformance hereunder is received by Seller within one year following the
date of shipment; provided such nonconforming products are, with Seller's
prior written authorization, returned FOB Seller's plant within 30 days after
such one year period. This warranty shall not apply to any products other
than their original condition, or to any products which Seller determines
have, by Buyer or otherwise, been subjected to operating and/or environmental
conditions in excess of the maximum values established therefore in the applicable
specifications or otherwise have been the subject of mishandling, misuse,
neglect, improper testing, repair alteration or damage. This warranty extends
to Buyer only and not Buyer's customers or users of Buyer's products and is
in lieu of all other warranties whether express, implied or statutory including
implied warranties of merchantability. In no event shall Seller be liable
for indirect, special or consequential damages of any nature whatsoever. Seller's
liability for any claim of any kind shall in no case exceed the obligation
or liability specified in this Warranty clause. B. Technical Assistance. Seller's
warranty as herein above set forth shall not be enlarged, diminished, or affected
by, and no obligation or liability shall arise or grow out of, Seller's rendering
of technical advice, facilities or service in connection with Buyer's order
of the goods furnished hereunder. C. Seller assumes no responsibility for
refund or replacement of products shipped at Buyer's request prior to successful
completion of acceptance and/or qualification tests performed by Seller at
Buyer's request, except those subject only to Buyer's incoming inspection.
The sale of products, or parts thereof, by Seller does not convey any license,
by implication, or otherwise, under patent claims covering combinations
of said product or parts with other devices or elements.
3. DELIVERY: All scheduled or quoted delivery dates are approximate
and are based upon prompt receipt of all necessary information from Buyer.
Seller shall not be liable for delays in delivery or failure to manufacture
or deliver: (a) due to causes beyond its reasonable control, or (b) due to
acts of God, acts of Buyer, acts of civil or military authority, priorities,
fires, strikes, floods, epidemics, quarantine restrictions, war, riot, delays
in transportation or car shortages, or (c) due to any other commercial impracticability.
In the event of any such delay, the date of delivery shall be deferred for
a period of time equal to the time lost by reason of the delay.
A. For multiple shipment orders, prices reflect deliveries of equal, or nearly equal, quantities
over a twelve-month maximum period, unless otherwise stated in the Quotation.
Rescheduling of deliveries noted on Buyer's original contract, or as agreed
upon and shown on Seller's Sales Acknowledgment must be made at least 45 days
prior to the originally scheduled delivery or the new delivery date, whichever
is earlier.
B. If rescheduling of deliveries results in completion of the
original contract later than the end of the thirteenth month following the
first scheduled shipment, billback charges will be computed to reflect the
appropriate pricing for the actual quantities shipped over that period. These
charges will then be invoiced on the same terms as the balance of the contract.
Additional units remaining on the contract will be reprised at the appropriate
quantity rate.
4. TRANSPORTATION: Unless otherwise agreed in writing by Seller,
delivery of the products hereunder shall be made FOB Elk River, Minnesota,
USA, with transportation expenses paid by Buyer, and risk of loss or damage
to products in transit shall fall upon Buyer, whose responsibility it shall
be to file claims with the carrier.
5. PAYMENTS: Payments shall become due as invoices are made
and shall be payable thirty (30) days from the date thereof without regard
to other deliveries. Seller reserves the right at any time to revoke any credit
extended to Buyer because of Buyer's failure to pay for any articles when
due or for any other reason deemed good and sufficient by Seller. In such
event, Seller may require that all subsequent deliveries shall be paid for
in advance or on delivery or Seller may suspend any further deliveries or
continuance of the work to be performed by Seller until such payment has been
received. If the work to be performed hereunder is delayed by Buyer, payments
shall be made based on the purchase price and the percentage of completion.
Products held for Buyer shall be at the risk and expense of Buyer. Failure
to furnish such payment within ten (10) days of demand by Seller shall constitute
a repudiation of the contract and in such event Seller shall be entitled to
receive reimbursement for its cancellation charges. In the event of bankruptcy
or insolvency of Buyer or in the event any proceeding is brought by or against
Buyer under the bankruptcy or insolvency laws, Seller shall be entitled to
cancel any order outstanding at any time during the period allowed for filing
claims against the estate and shall receive reimbursement for its cancellation
charges. All payments shall be in legal currency of the United States. Acceptance
and endorsement by Seller of an instrument for less than the full amount which
Seller claims to be due shall not be deemed to be an admission of payment
in full and any conditions to the contrary which are noted on such an instrument
shall not be binding on Seller. Prices are subject to correction for error.
6. TAXES: The amount of any present or future sales, uses,
excise or other tax applicable to the sale or use of the products sold hereunder
shall be paid by Buyer, or in lieu thereof Buyer shall provide Seller with
a tax exemption certificate acceptable to the taxing authorities.
7. CANCELLATION: No cancellation by Buyer for default shall
be effective unless Seller shall have failed to correct such alleged default
within thirty (30) days after receipt by Seller of a written notice specifying
such default. Buyer may cancel his order only upon 45 days written notification
and upon payment to Seller of cancellation charges, which may be levied for
such action. These charges will not exceed the total of the following:
A. Billback charges and/or other cancellation charges levied by Seller's suppliers
for materials used in Seller's finished products;
B. Billback charges for products Seller supplies, based on the difference between the original contract
price and the appropriate price for the quantity actually accepted by Buyer;
C. Charges for a 45 day (minimum) supply of materials in Seller's inventory,
unique to the product supplied to Buyer. |
