Micro-Trak Systems, Inc. (herein “Seller”) affirms to the original purchaser (herein “Buyer”) that these terms and conditions of sale (herein “Agreement”) are relevant to any order placed with and accepted by Seller:
- SCOPE OF AGREEMENT. Seller, upon acceptance of a Purchase Order (herein “PO”) placed by Buyer, will supply the products and services (herein “Work”) specified in the PO to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits, if any, the Seller’s OEM Quotation (herein “Quotation”) and the Seller’s standard published retail pricing and discounts (herein “Price Sheets”) and Seller’s acceptance of such PO submitted by Buyer is expressly limited to the terms and conditions of this Agreement and its exhibits, if any, and the Seller’s Quotation and Price Sheets notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The Buyer’s details of the Work (e.g. part number, quantity, description and requested delivery schedule) shall be set forth in the relevant PO. The Seller’s detail of Work (e.g. part numbers, prices, specifications, valid dates, terms, freight, lead time, fees for non-standard performance and minimum purchase and delivery requirements) shall be set forth from time to time in Quotations and Price Sheets.
- PRICE AND TERMS. Unless otherwise expressly stated in relevant Quotations: (i) The prices payable by Buyer for the Work or part of the Work (herein “Parts”) to be supplied by Seller under this Agreement will be specified in the relevant Price Sheets. All prices are in US dollars, and exclude shipping, handling, and taxes. (ii) Buyer payment terms without prior credit approval and open account status are cash, bank transfer, wire transfer or credit card payment in full prior to delivery or cash on delivery (COD). Unless otherwise agreed to by Seller in writing, Buyer payment terms with prior credit approval and open account status are net thirty (30) calendar days from the date of the invoice. If Buyer does not pay an invoiced amount within terms, Buyer will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance and Seller reserves the right to (a) withhold shipment of the Parts until full payment is made; and/or (b) revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Seller for the reasonable costs, including attorneys’ fees, of collecting such amounts from Buyer. In the event of any dispute regarding an invoice, no finance charges will apply in the event that Buyer provides written notice of the dispute prior to the due date for such payment. (iii) In the event that Buyer makes payment to Seller by, including but not limited to, bank transfer, wire transfer or credit card, Buyer will in addition pay to Seller all charges and fees incurred by Seller associated with said payment. (iv) Upon reasonable request by the Seller, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as Seller reasonable requests to determine credit status or credits limits. (v) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyer’s ability to perform its obligations under this Agreement including but not limited to: (a) the material default of any supplier or sub-contractor; (b) labor strike or dispute; or (c) material uncured default with respect to any debt obligations of Buyer. (vi) Pricing and/or specifications (whether attached to this Agreement, Quotation, and Price Sheets or otherwise provided to Buyer by Seller) are subject to change without notice and are effective as of the date of said price and/or specification change. If Buyer submits a PO to Seller prior to a price increase with deliveries scheduled to occur after the price increase, Seller will honor the price in effect on the date of the PO for said scheduled deliveries for a period of sixty (60) days commencing on the date of the price increase, but only for those PO’s submitted prior to the date of the price increase with deliveries scheduled to occur after the price increase. (vii) Parts will be delivered standard UPS Ground delivery FOB Seller’s manufacturing facility. Shipping will be arranged by Seller and billed to Buyer. All Parts delivered to Buyer with shipping billed other than to Seller is subject to handling fees billed to Buyer at a rate solely determined by Seller.
- BUYER MATERIALS AND DATA. (i) Buyer represents and warrants that any matter it furnishes for performance of services by Seller (a) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (b) is not libelous or obscene; (c) does not invade any persons right to privacy; and (d) does not otherwise violate any laws or infringe the rights of any third party. (ii) Buyer warrants that it has the right to use and to have Seller use on behalf of Buyer any data provided to Seller or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (herein “Data”). Buyer further warrants that it will designate on the relevant PO if Data provided pursuant to that PO is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.
- INTELLECTUAL PROPERTY. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the PO or made or conceived by employees of Buyer during the Term of the PO shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to Seller a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Seller as reasonably necessary to fulfill any PO. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Seller as of the date of the PO or made or conceived by employees, consultants, representatives or agents of Seller during the term of this Agreement shall be and remain the sole and exclusive property of Seller. Without limiting the generality of the foregoing, the parties agree that Seller will own systems (including all web source code) related to the Parts provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the PO. Without limiting the generality of the foregoing, Buyer acknowledges and agrees that Seller is in the business of developing customized electronic control and/or monitoring solutions and that Seller shall have the right to provide to third parties Parts which is the same or similar to the Parts provided herein and to use or otherwise exploit any Seller materials in providing such Parts.
- CONFIDENTIAL INFORMATION. Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, herein “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Parts In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Seller and Buyer, and in no event shall Seller acquire and right, title, or interest in and to any materials or information provided to it by Buyer.
- INDEMNIFICATION. The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement, or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall Seller be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
- BREACH. In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the PO, the Quotation or this Agreement, the non-breaching party shall have the right to: (i) terminate the PO immediately upon written notice to the other party; and (ii) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. Failure to properly demand compliance or performance of any term of the Quotation or this Agreement shall not constitute a waiver of Seller’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Buyer shall provide Seller with reasonable notice of any alleged deficiencies in the Work or performance under the Quotation or this Agreement and Seller shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
- WARRANTY STATEMENT. Seller warrants to Buyer that, if any Parts prove to be defective in material or workmanship, upon inspection and examination by Seller, within three (3) years from the original date-of-purchase, and is returned to Seller with dated proof-of-purchase, transportation prepaid, within sixty (60) days after such defect is discovered, Seller will, at their option and sole discretion, either repair or replace said Parts, except that the warranty for expendable Parts, including but not limited to, light bulbs, batteries, hose and tubing, nuts, bolts, screws and other fasteners shall be thirty (30) days from the original date-of-purchase; and except that the warranty for Parts manufactured by someone other than the Seller, including but not limited to, shut-off valves, control (servo) valves, flowmeters, pressure sensors and regulators, pumps, motors, compressors, tanks and tank accessories, DGPS receivers and related repeater and base stations shall be one (1) year from the original date-of-purchase; and except that the warranty for Parts manufactured by someone other than the Seller, including but not limited to, memory cards and drives, mapping software, terminals, PC’s, laptops, tablets and other computer devices shall be thirty (30) days from the original date-of-purchase. Any damage or failure to said Parts resulting from abuse, misuse, neglect, accidental or improper installation or maintenance, unauthorized modification, use with other parts and/or products, or attributable to acts of God, as determined solely by the Seller, will invalidate the warranty. Said Parts will not be considered defective if it substantially fulfills the performance specification. Buyer shall be responsible for all maintenance services, if any, all in strict accordance with the procedures outlined in the manual. The warranty does not include labor, installation, replacement parts or repairs, delivery of replacement parts or repairs or time and travel. Said warranty is non-transferable.
- LIMITATION OF LIABILITY. The foregoing warranty is exclusive and in lieu of all other warranties of merchantability, fitness for purpose and of any other type, whether express or implied. The Seller’s liability, whether in contract, in tort, under any warranty, in negligence or otherwise, shall not exceed the return of the amount of the purchase price paid, and under no circumstances shall the Seller be liable for special, indirect, consequential, incidental or punitive damages. Seller neither assumes nor authorizes anyone to assume for it any other obligation or liability in connection with said part. No action, regardless of form, arising out of the transactions under this agreement may be brought more than one (1) year after the cause of action has occurred.
Buyer accepts these warranty terms and limitations unless the Parts are returned to Seller, via proper distribution channels and approved return authorization, with dated proof-of-purchase, transportation prepaid, within sixty (60) days from the date-of-purchase for refund of the purchase price.
- RETURN STATEMENT. Seller affirms to Buyer that no Parts shipped by Seller can be returned without Seller’s prior approval, which approval can be withheld or denied at Seller’s sole option and discretion. In no event will Seller be obligated to accept any return more than sixty (60) days from the original date-of-purchase. Seller may, upon request from Buyer, issue authorization for the return of Parts, originally purchased from Seller by Buyer, for refund of the original purchase price to said Buyer. Said return is valid only when the Parts are returned in strict accordance with the procedures outlined herein. In the event Seller elects to accept a return, Seller will issue a Return Merchandise Authorization (“RMA”) Number that must accompany said Parts with dated proof-of-purchase and transportation prepaid. Said Parts must be returned in new condition. RMA numbers are valid for thirty (30) days. All Parts from Buyer being shipped to Seller for return consideration must be accompanied by said RMA number. All Parts returns are subject to preapproval by Seller and are not an authorization of credit. Buyer shall provide the following documentation for preapproval: (i) Buyer name, address, phone number and contact person; (ii) invoice number and original date of purchase; (iii) part number, quantity and description of the Parts; and (iv) reason for Parts return request with as much detail as possible. When shipping an authorized Parts return to Seller, Buyer shall ship said return, transportation prepaid, with the RMA number prominently displayed on the outside of the shipping box. Freight, duties, and any other charges incurred due to Parts returns are the sole responsibility of the Buyer. Seller shall not be obligated for any costs incurred by any Buyer attempting to return the Parts, unless otherwise authorized by Seller. Buyer assumes all responsibility for lost or damaged packages when shipping Parts returns to Seller. Seller may, as determined solely by the Seller, charge Buyer a restocking fee of not less than twenty-five (25) percent of the original purchase price for: (i) Parts returns due to Buyer and or customer error, change or convenience; (ii) Parts returns that are missing parts or otherwise incomplete; or (iii) Parts returns that cannot be resold in current packaging and require repackaging. Seller may, as determined solely by the Seller, revoke an RMA for Parts returns for: (i) Parts that have been modified or altered; or (ii) Parts that have been installed or is in used condition. Seller shall not accept Parts returns for: (i) discontinued and/or obsolete Parts; (ii) Parts originally purchased more than sixty (60) days from the requested RMA date; (iii) Parts not purchased directly from Seller; or (iv) special order Parts and/or custom Parts.
- NON-CANCELABLE AND NON-RETURNABLE PARTS. Seller affirms to Buyer that items on relevant Quotations and Price Books designated with the number sign, #, in front of the part number are non-cancelable and non-returnable parts (herein “NCNR Parts”). NCNR Parts are configured specifically with, including but not limited to, custom branding and logo design, custom hardware design, custom software design, and custom harnessing design for Buyer by Seller and/or one or more of Seller’s suppliers. Buyer assumes full liability for any NCNR Parts on a PO that: (i) have been shipped to Buyer or a location as directed by Buyer; (ii) are being held in inventory for Buyer by Seller and/or Seller’s suppliers; (iii) have been ordered by Buyer from Seller and have been manufactured by Seller and/or Seller’s suppliers; (iv) are work-in-process or prebuilt for Buyer by Seller and/or by Seller’s suppliers; or (v) are parts that cannot be moved to Buyer’s requested new ship date by Seller and/or Seller’s suppliers. As a result of the foregoing, NCNR Parts on a PO accepted by Seller: (i) cannot be canceled by Buyer; (ii) cannot be returned by Buyer to Seller for any reason other than applicable; (iii) cannot be rescheduled by Buyer for a shipment date later than the original Seller-approved scheduled ship date. Seller will make every attempt to meet Buyer’s requested ship dates, but Seller cannot commit to a firm ship date until Seller is in receipt of material from Seller’s suppliers. NCNR Parts may only be returned by Buyer to Seller in accordance with any applicable warranty claim. Seller will issue an RMA Number that must accompany NCNR Parts being returned for a warranty claim. Any warranty coverage that would ordinarily apply by Seller will not be affected by a NCNR Part designation. Seller will make reasonable efforts to accommodate changes to Buyer’s delivery requirements. However, in the event production of the NCNR Parts has been started by Seller and/or by Seller’s suppliers, changes may not be able to be made. Additionally, in the event the NCNR Parts have been purchased by Seller and/or by Seller’s suppliers, changes may not be able to be made. In the event changes can be made by Seller and/or Seller’s suppliers, Buyer is solely responsible for any charges incurred by Seller to make said changes and any charges passed along to Seller from Seller’s suppliers to make said changes.
- NOTICE. Any notice sent pursuant to the PO or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the PO or to such address as either party may in the future designate. A copy of any notice to Seller shall be also sent to General Counsel, 1305 Stadium Road, Mankato, Minnesota 56001 together with a copy this Agreement. Notices shall be effective upon receipt.
- ASSIGNMENT. Except as otherwise provided, the PO, the Quotation and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- STATUS. Buyer and Seller are separate entities. Nothing in the PO, the Quotation or this Agreement shall be construed as creating an employer-employee or joint venture relationship.
- COMPLIANCE WITH LAW. Seller shall comply with all state, federal and local laws and regulations relevant to its performance hereunder.
- GOVERNING LAW. The PO, the Quotation and this Agreement shall be governed by the laws of the State of Minnesota, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the PO, the Quotation or this Agreement shall be commenced in a federal court in Minnesota or in state court in the County of Blue Earth, Minnesota, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. With respect to any litigation arising out of the PO, the Quotation or this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorney’s fees, from the other party.
- FORCE MAJEURE. Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
- SURVIVAL. In the event any provision of the PO, the Quotation or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the PO, the Quotation or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the PO, the Quotation and this Agreement.
Source Doc: MTS Buyer Terms of Sale_080220 Rev 3_12092021