|
GENERAL TERMS&CONDITIONS
<br /> I Formation of Contract that such products have not been abused by the Buyer lir used in conditions for which the products were not
<br /> 1.1 These terms and conditions constitute a complete statement of the agreement between the Buyer and Interstate intended The aforesaid right of replacement or reimbursement shall be the Buyer's sole and exclusive remedy
<br /> Power Systems,Inc.(Seller)or its subsuhancs or operating divisions,or Istatc Trick,Inc or Its subsidiaries or in the event of non-conformity or defect in the products. The Seller shall not be liable for the incidental or
<br /> operating divisions,which shall not be supplemented or amended except as set forth on the face of this Invoice consequential damages to the Buyer as a result of the Seller's breach of Contract. In no event Shan the
<br /> or by separate written agreement signed by both parties Provisions set forth on the face hereof shall govern, Seller's liability exceed the Seller's Invoice value to the Buyer of the products sold regardless of the
<br /> where inconsistent with these terms and conditions nature of the claim of the Buyer.
<br /> 12 Terms and conditions of the buyer additional to or varying from those of this Invoice shall not be binding on 6. Passage of Title—Security Interest
<br /> the Seller unless specifically agreed to in writing by the Seller. The Seller's acceptance or acknowledgement of 6.1 Seller shall retain title to ownership of,and security interest in the products until the contract purchase price set
<br /> the Buyer's purchase orders or shipping instructions shall not constitute such written agreement If thus Invoice forth on the face hereof shall have been paid in fill and all covenants and agreements of Buyer herein shall
<br /> shall be deemed an acceptance of a prior offer by the Buyer,such acceptance is expressly conditional on the have been performed Seller shall have all common law and statutory lien rights available in the state where
<br /> Buyer's assent to any additional or different terms contained herein goods or services are provided and Buyer hereby agrees that If Buyer takes possession of the related equipment
<br /> 2 Acceptance without making payment to Seller and thereafter Seller regains lawful possession of the equipment that was
<br /> 2.1 No offers,arrangements or orders shall be binding on the Seller unless and until confirmed by the Seller in once subject to hen claims while there remains a balance due Seller.all such lien rights shall be reinstated as if
<br /> writing Seller had always maintained lawful possession of all such equipment
<br /> 22 Acceptance by the Buyer of delivery of all or any part of the products cold hereunder shall be an 62 At the request of Seller,Buyer shall execute and deliver to Seller all such financing statement and other
<br /> acknowledgement and acceptance by the Buyer of these Terms and Conditions,whether or not the Buyer shall instruments and documents as may be requested by Seller to evidence and to perfect its security interest in the
<br /> have first received this Invoice. products Expenses of filing financing statements or other security documents with the appropriate state and
<br /> 3 Price and Payment local governmental authorities shall be for the account of the Buyer
<br /> 3 I The price shall be as specified on the face of this Invoice 7 Force Majearc
<br /> 3 2 Prices,quotations,specifications and other terms and all statements appearing in the Seller's sales literature and 7 1 If because of force majeure the Seller is unable to carry out any of its obligations wider this agreement and if
<br /> otherwise made by the Seller are subject to change without notice. The Seller is not responsible for the Seller promptly notifies the Buyer in writing expressly claiming such force majeure,then the provisions of
<br /> typographical etrors made in any of its publications or stenographic or clerical errors made in preparation of paragraph 7.2 shall apply The term"force majeure"as used herein shall mean any causes reasonably beyond
<br /> quotations All such errors arc subject to correction Without limiting the generality critic foregoing,all prices the control and without fault or negligence of the Seller which wholly or in substantial part prevent the
<br /> are subject to and shall be increased by sales tax where applicable. manufacture,transportation,loading,unloading,delivery or storage of the products sold hereunder Examples,
<br /> 33 Payment of the selling price and additional costs are due in accordance with the terms set forth on the face of without limitation,of force majeure arc acts of God,acts of the public enemy,acts of war,not or civil
<br /> this Invoice. All payments hereunder shall be made to Seller at 2601 American Blvd East,Minneapolis,MN commotion,labor disputes,labor or material shortages,accidents,fire,explosions,floods,breakdowns of or
<br /> 55425 Complaints or claims by the Buyer shall not impair the Seller's right to payment as provided hereunder damage of plants,equipment or facilities,partial or complete embargoes imposed by ongmating or connecting
<br /> and any adjustments to be made as a result of such complaints shall be made subsequent to such payment inland canters,Interruptions to or contingencies of transportation,orders or acts of any governmental authority,
<br /> 34 If the credit of the Buyer shall at any time,in the sole judgement of the Seller,become impaired,the Seller may acts,rules,regulations or expressed policies of any government
<br /> at,its option,and without incurring any liability therefor,divert or prevent the discharge of shipments en route 72 If force majeure notice is given under paragraph 7.1 above,the obligations of the Seller shall be suspended to
<br /> to the Buyer and cancel the unfilled portion of the contract,or require the Buyer to give such security as the the extent made necessary for such force majeure and during its continuance,if the obligations of the Seller
<br /> Seiler may specify to ensure payment or require payment in advance before malting any further shipment All remain suspended hereunder for a period amounting to forty-five(45)consecutive days measured from the
<br /> costs and expenses incurred by the Seller as a result of its exercise of any right or option under this paragraph dates of performance and at any time thereafter,then either party may terminate the agreement without liability
<br /> shall be for the account of the Buyer. by giving fifteen(15)days notice to the other party At the expiration of said fifteen(15)days,unless such
<br /> 3 5 Prompt payment is of the essence of this contract and a default in any payment will,at the option of the Seller, condition shall have been ended,the party giving such notice may terminate this agreement forthwith
<br /> CD operate as a breach of the entire contract. Past due payments shall bear interest computed monthly dt a rate of 8. LIABILITY FOR DAMAGES
<br /> IYi percent per month on the outstanding balance,or such lower rate as shall be the highest allowable under 8 1 SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY THE PRODUCTS DELIVERED
<br /> applicable law. OR TO BE DELIVERED TO THE BUYER,OR BY THE BUYER'S OR ANY THIRD PARTY'S USE OF
<br /> 3 6 The Buyer shall be in default hereunder if any one or more of the following events occurs (a)the Buyer shall SUCH PRODUCTS,AFTER THE PRODUCTS HAVE BEEN IDENTIFIED TO THE CONTRACT.
<br /> default in fulfilling any of its obligations to Seller;(b)a receiver,liquidator or trustee of the Buyer,or of any of 92 THE SELLER'S OBLIGATIONS HEREUNDER ARE EXPRESSLY SUBJECT TO THE OCCURRENCE
<br /> its property.is appointed by court order.(c)the Buyer is adjudicated bankrupt or insolvent,(d)any property of OF EVENTS OF FORCE MAJEURE,AND NO LIABILITY SHALL BE INCURRED BY SELLER FOR
<br /> the Buyer is sequestered by court order;(c)a petition is filed by or against the Buyer under any bankruptcy, DAMAGES OF ANY NATURE RESULTING FROM SUSPENSION,REDUCTION OR TERMINATION
<br /> reorganization,arrangement,insolvency,moratorium,readjustment of debt,dissolution or liquidation law of OF DELIVERIES FOR REASONS OF FORCE MAJEURE,OR FROM SELLER'S COMPLIANCE WITH
<br /> any junsdiction,(t)the Buyer becomes insolvent,snakes an assignment for the benefit of its creditors,admits in ANY GOVERNMENT ACTION
<br /> writing its mobility to pay its debts generally as they become due,or consents to the appointment of a receiver, 83 THE BUYER SHALL IIOLD THE SELLER HARMLESS FROM ALL CLAIMS OR ACTIONS BROUGHT
<br /> trustee or liquidator of the Buyer or of all or any substantial part of its property in the event of such default,all BY THIRD PARTIES WITH RESPECT TO ANY DAMAGES DESCRIBED IN THIS ARTICLE 8
<br /> unpaid payments shall,at the Seller's option,become immediately due and payable and the Seller shall have the 9 Waiver,Abandonment and Severability of Terms
<br /> right to consider its contract with the Buyer cancelled and to recover damages,and shall further have all rights 9 1 Waiver by the Seller of any default of the Buyer shall not be deemed a waiver of any other default of the Buyer.
<br /> and remedies,including those of a secured party,provided by applicable law For purposes of this paragraph The express provision herein for certain rights and remedies of the Seller shall not be construed to deprive the
<br /> "Buyer"shall include any corporation controlling,controlled by,or under the common control with Buyer Seller of any other rights and remedies to which it would otherwise be entitled under applicable law
<br /> 37 All costs incurred by the Seller as a result of non-payment or delay in payment by the Buyer,including,without 92 Any property of the Buyer left on Seller's premises which remains unclaimed for thirty(30)days shall be
<br /> limitation collection costs and reasonable attorney's fees,shall be paid by Buyer deemed abandoned and Seller shall have the right to dispose of such property in any manner It so chooses.
<br /> 4 DISCLAIMER OF WARRANTY 93 The invalidity army provision of these Terns and Conditions shall not affect the remaining provisions hereof.
<br /> THE SELLER WARRANTS THAT THE PRODUCTS CONFORM TO THE SPECIFICATIONS SET 10 GoverningLaw—Notice
<br /> FORTH ON THE FACE HEREOF OR AS THE MANUFACTURER MAY PROVIDE THE SELLER 101 This Invoice shall be interpreted to accordance with the internal laws of the State of Minnesota(without giving
<br /> MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS OR effect to its conflicts of laws rules)including,without limitation,the Uniform Commercial Code as enacted and
<br /> OTHERWISE,EXCEPT AS SET FORTH IN THE PRECEDING SENTENCE OR ON THE FACE HEREOF in force from time to time in the State of Minnesota and no presumption shall be deemed to exist in favor or
<br /> 5 Remedies of Buyer against either party as a result of the preparation and/or negotiation of this Invoice
<br /> 5 1 Seller shall not be liable for any claim ansing in connection with the products sold to the Buyer hereunder 102 This Invoice and all the temp and conditions hereof shall be binding upon the Parties and their respective
<br /> unless wntten notice is given by the Buyer to the Seller as provided in paragraph 5.2 below successors and assigns,however,the Buyer shall not assign or otherwise transfer any of ns rights or obligations
<br /> 5.2 Written notice of any objection,complaint or claim concerning the product must be given hereunder without the prior written consent of the Seller.
<br /> (a)with respect to claims of damage to the products which occurred in transit,within thirty(30)days after the 10 3 The parties hereto submit to the jurisdiction of the courts of the State of Minnesota(including Hennepin
<br /> date on which risk of loss with respect to the products passes to the Buyer,(b)with respect to claims of non- County Conciliation Court),and the Minnesota Federal Courts. The parties hereto also agree to service
<br /> conformity to specifications.within thirty(30)days following the date on which risk of loss with respect to the of any complaint by certified mail. To the extent that the Buyer or any of its property has or may hereafter
<br /> products passes to the Buyer,provided however,that no claim of non-conformity will be honored if the Buyer acquire any right of sovereign immunity from suit,the Buyer hereby irrevocably waives any such right of
<br /> has previously notified the Seller of its acceptance of the product following inspection thereof sovereign immunity in respect of its obligations,rights and duties under this agreement.
<br /> 5.3 Failure to give such notice in the manner and within the time provided herein shall be deemed a waiver by the 104 Notices or other communications shall be given by facsimile or a-mail,or by registered or certified mail,return
<br /> Buyer of all claims with respect to such products receipt requested Facsimile or e-mail notice shall be deemed received twelve hours after transmission. Mail
<br /> 54 Seller will,at its sole discretion,either reimburse Seller's Invoice value to the Buyer of products found to be notice shall be deemed received on the third day after mailing(or on the next business day if the third day is not
<br /> defective,or replace free of charge all products found to be defective,within thirty(30)days after the date of a business day). Where both methods of notice are used,the earlier shall establish the effective date of nonce.
<br /> notice with respect to any such product was given to accordance with paragraph 5.2 above;provided,however, Notice shall be given to the address of a party as stated on the face hereof until appropriate notice otherwise.
<br />
|