Terms and Conditions
Terms and ConditionsTERMS AND CONDITIONS OF SALE
SOLE AND EXCLUSIVE TERMS OF SALE.
Except as otherwise specifically agreed in writing by Birchwood Casey, LLC ("Seller"), this invoice, together with any other documents of Seller pertaining to this transaction, contains the sole and exclusive terms and conditions which shall apply to the sale by Seller to the Buyer ("Buyer")of the goods referenced hereon, and any additional or different terms or provisions in documents provided by Buyer relating to such sale shall not apply to such sale and are hereby objected to by Seller.
PAYMENT; FINANCIAL CONDITION.
Terms of payment are as stated on the face hereof. Buyer represents that Buyer is solvent. If Buyer does not meet payment terms, or Buyer's credit becomes unsatisfactory to Seller, Seller may decline to ship except upon payment in full or provision of adequate security.
SERVICE CHARGE ON LATE PAYMENTS.
A service charge of one and one-half percent (1-1/2%) per month (or such maximum lesser rate as is permitted by law) shall be due on all amounts received after the due date specified on the face hereof, calculated from the due date.
RISK OF LOSS: SHIPMENT LOSSES.
The risk of loss for goods sold passes to Buyer when the goods are delivered to the carrier, except when shipment terms are C.I.F. or unless otherwise agreed in writing by Seller. Where the risk of loss has so passed to Buyer, Buyer must obtain redress for freight losses, shortages or damages. Notwithstanding this allocation of the risk of loss, the goods shall remain subject to the Seller's rights of freight losses, shortages or damages from the carrier, and/or applicable insurers, as the case may be, and the Seller is not responsible for said redemption and of stoppage in transit.
Buyer must notify Seller within fifteen business days of receipt of the goods sold hereunder of any shortages, damages or other claims against the carrier of the goods.
Any tax imposed by Federal, state or other governmental authority on or with respect to the sale, purchase, delivery or use of the goods referred to hereon shall be the responsibility of Buyer, unless Buyer provides Seller with a tax exemption certificate acceptable to the relevant taxing authorities.
Seller warrants that the goods sold hereunder have been inspected and tested and found to meet their published specifications, with normal variations, when shipped from Seller's plant. Unless specifically authorized in a separate writing by Seller, Seller makes no warranty with respect to and shall have no liability in connection with, any goods sold hereunder which are incorporated into other products or equipment by Buyer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THE FIRST SENTENCE OF THIS PARAGRAPH, SELLER MAKES NO WARRANTY (EXCEPT AS TO TITLE), EXPRESS OR IMPLIED, BY DESCRIPTION, BY SAMPLE OR OTHERWISE, WITH RESPECT TO GOODS SOLD HEREUNDER, AND IN PARTICULAR AND WITHOUT LIMITATION DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILILTY OR FITNESS FOR A PARTICULAR PURPOSE. No modifications are authorized in this warranty unless in writing and signed by the President or any Vice President of Seller.
REPLACEMENT EXCLUSIVE REMEDY
. If any goods sold hereunder fail to conform with the provisions hereof, Buyer's sole and exclusive remedy is to return the non-conforming goods for replacement or, at Seller's option, refund, to Seller's factory, transportation charges prepaid. If Seller confirms that such goods are non-conforming, Seller will replace the same, free of charge F.O.B. the Seller's plant, or, at its option, Seller may refund or credit the purchase price paid for the non-conforming goods. Seller's obligation hereunder is subject to the other terms and provisions hereof, and shall terminate no later than one year from the date of shipment of the goods.
LIMITATION OF LIABILITY.
Seller's liability, whether in contract, in tort, or otherwise arising in any way or fashion in connection with the goods sold hereunder or any agreements or services related thereto (a) shall not include liability for any incidental, consequential, indirect, special or punitive damages, loss or expense and (b) in any event shall not exceed the amount paid for the goods in connection with which the liability arises.
Buyer shall inspect goods delivered hereunder within fifteen business days from the date of receipt of the goods, and within said period of time shall send Seller a written notice fully specifying in detail any respects in which said goods are non-conforming. Failure to send said written notice shall constitute a waiver of Buyer's claims for all non-conformities that an inspection, whether or not in fact carried out, should have discovered. Buyer shall be deemed to have accepted goods delivered hereunder unless within fifteen business days of the date of receipt of said goods Buyer sends Seller a written notice of rejection accompanied by a written statement detailing the grounds for rejection.
CAUSES BEYOND SELLER’S CONTROL.
Seller will not be liable for any breach, non-performance of delay in performance in connection with the sale of goods subject to this invoice, or for any damages, loss or expense suffered by Buyer by reason of such breach, non-performance or delay, to the extent such breach, non-performance or delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, riots, acts of Buyer, delay or non-performance by Seller's suppliers or contractors or any other cause or causes (whether or not similar in nature to any of those listed above) beyond Seller's control.
Buyer shall indemnify and hold harmless Seller and each of its officers, governors, agents and employees (“Seller Indemnified Parties”) from and against all losses, costs, liabilities, settlement payments, awards, judgments, fines, penalties, damages or deficiencies, and any and all reasonable out-of-pocket expenses incurred (including arbitration fees or costs, witness fees, and reasonable fees and disbursements of legal counsel, and including to the extent incurred in connection with investigating, defending or asserting any claim), whether in the nature of personal injury, infringement or otherwise (collectively, “Losses”), incurred by the Seller Indemnified Parties as a result of or in connection with the acts or omissions of Buyer or the use, modification, or resale by Buyer or its customers of the goods delivered hereunder. Without limiting the foregoing, if any goods sold hereunder are manufactured to Buyer's plans or specifications, Buyer shall indemnify and hold the Seller Indemnified Parties harmless from and against any Losses which result from Buyer's plans or specifications. Unless otherwise agreed in writing by Seller, any tools, machines, dies or other materials used in producing goods to Buyer's specifications shall remain the property of Seller.
Should Seller furnish any technical advice with respect to the use of the goods delivered hereunder, Seller assumes no liability or obligation for the advice given or results obtained. Buyer accepts such advice at its own risk. In any event, the limitations on remedy and liability contained herein shall apply to any such advice given.
DESIGN OR MANUFACTURE CHANGES
. Seller may make any changes in the design or manufacture of any goods sold hereunder without incurring any obligation to incorporate such changes into units of said goods manufactured for or delivered to Buyer prior to such changes.
Any controversy, claim or disagreement arising out of or relating to the transactions evidenced herby shall be settled by binding arbitration in the County of Hennepin, in the State of Minnesota, in accordance with the then-current rules and procedures of the American Arbitration Association, and the award by the arbitrators shall be enforceable in the courts of the State of Minnesota and any other court having jurisdiction.
The mode of shipment of the goods sold hereunder is specified in the shipping documents that accompany the goods. Whenever Seller pays the cost of shipment, Seller reserves the right to select the route, method of shipment and carrier.
Any action arising hereunder or in connection with the transactions evidenced hereby, whether in contract, tort, or otherwise, other than an action for failure to make payment of the price specified herein, must be commenced within one year of the date the cause of action accrues. Any stenographical or clerical errors appearing in the typed portion of this Invoice may be corrected at any time by the Seller. This Invoice and the transactions evidenced herby shall be governed by the laws of the State of Minnesota.