1. ACKNOWLEDGMENT
These Terms and Conditions of Purchase shall be incorporated as part of and apply to the purchases of goods or services under this Purchase Order (“Order”). Seller’s acceptance of this Order shall occur upon the earlier of:
(a) Seller’s signing and returning the acknowledgment copy of this Order, or
(b) Seller’s commencement of manufacturing or shipment of goods or performance of services under the Order. ACCEPTANCE OF THE ORDER SHALL CONSTITUTE SELLER’S AGREEMENT TO COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR INCONSISTENT TERMS OR CONDITIONS CONTAINED IN ANY QUOTATION, BID, ACKNOWLEDGEMENT, OR OTHER DOCUMENT OF SELLER ARE OBJECTED TO BY HINIKER COMPANY (HEREAFTER “Buyer”) AND SHALL NOT BE EFFECTIVE OR BINDING AS TO BUYER, UNLESS AGREED IN WRITING AND SIGNED BY AN OFFICER OF BUYER. Upon acceptance, the Order constitutes the entire agreement of Buyer and Seller. Trade usage and course of dealing or performance shall not be employed to vary, explain, or supplement these terms and conditions. Any reference on the face of the Order to any bid, proposal, or offer of sale is deemed to be limited to the description of the goods and shall not affect or modify these terms and conditions.
2. PRICE AND PAYMENT TERMS
This Order must be billed at the prices stated on the purchase order. If no prices are stated, this Order must be billed at prices no higher than those last quoted or at the most favorable prevailing market price, whichever is lower. No price escalation may be collected by Seller unless specifically agreed to by Buyer in writing. Unless otherwise agreed to by Buyer and Seller, payment shall be due sixty (60) days from the receipt of Seller’s invoice.
3. INVOICES
Seller should not deliver an invoice with any goods or services. Invoices must be sent to the address shown on the purchase order on or after the date the applicable goods or services are delivered. All shipments must be accompanied by packing slips containing a description of the goods and Order number. Separate invoices must be rendered on each Order and on each partial shipment made against any Order and must bill in accordance with the purchase order. Seller must not consolidate shipments on a single invoice that are applicable to different orders. All invoices must reference the applicable purchase order number.
4. QUANTITIES
Quantities of work or materials ordered hereunder may not be changed without the prior written approval of Buyer. If the total or any portion of the shipments ordered either exceeds or falls below the quantities ordered, Buyer shall have the right to reject and return, at the risk and expense of Seller, any such shipments or portion thereof.
5. RISK OF LOSS AND RIGHT TO DEFER OR CANCEL
(a) Unless otherwise specified by Buyer in writing, all goods are to be furnished f.o.b. point of destination. Seller shall ship by a reliable common carrier able to meet Buyer’s delivery date. All goods will be packaged in suitable containers that provide protection against damage during shipment, handling and storage. Seller agrees to pay all excess charges and expenses resulting from failure to ship and route by the least expensive way or as instructed by Buyer, and to reimburse Buyer for any such charges paid or expenses incurred by Buyer for Seller’s failure to do so. No charges will be allowed for freight, transportation, insurance, shipping, storage, handling, cartage, packaging, crating, or similar charges unless provided for in this Order or consented to in writing by Buyer.
(b) Buyer reserves the right to change shipping and service schedules and to defer shipment or performance of services (or any portion thereof) for up to 120 days of this Order, without liability to Seller.
(c) Buyer reserves the right to cancel or change this Order for goods or services at any time prior to receipt of same, without liability to Seller, other than actual out of pocket costs incurred by Seller (excluding costs of parts/goods that can be reused or sold) and fees owed for the receipt of goods or provision of services by Seller prior to such termination. Seller must provide actual invoices or other documentation in order to be reimbursed for any out-of-pocket costs.
(d) In the event any goods are delivered, or services are performed, more than one (1) week prior to the delivery or completion date specified in this Order, Buyer may, at its option, accept or reject such goods or services. In the event of Buyer’s acceptance, such acceptance shall not accelerate Buyer’s obligations for payment.
6. INSPECTION AND APPROVAL
All shipments shall be received subject to Buyer’s right of inspection and approval. Buyer’s inspection and approval including, but without limitation, a final count of the items, (which count shall be deemed to be conclusive), shall not relieve Seller from its warranties or other obligations hereunder. Any services performed by Seller pursuant to this Order shall be subject to acceptance by Buyer to verify that the applicable services satisfy the criteria mutually agreed to by Buyer and Seller. Buyer reserves the right to reject all or any part of defective or substituted goods or services which do not conform to Buyer’s specifications. Buyer may return such goods to the Seller at Seller’s risk with transportation and other incidental charges to be paid by Seller. Seller will either repair or replace the goods or re-perform the services at no charge to Buyer and cover the cost of freight for both the return and replacement of the goods. In the event of failure by Seller to correct defects in or to replace nonconforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the costs incurred by Buyer or resort to any other remedy available to Buyer.
7. WARRANTIES
(a) Merchantability-Use-Description. Seller expressly warrants that all goods and services covered by this Order shall (i) conform to the specifications, drawings, samples, or other descriptions upon which this Order is based and shall not include substitutions unless specifically authorized by Buyer in this Order; (ii) be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects of any nature; (iii) perform to the satisfaction of Buyer, and (iv) not infringe upon any patent, invention rights, trademark, licenses or any other property rights of any third party. If tolerances are specified in this Order, Seller warrants that the goods and services shall conform to such tolerances. At Buyer’s request, Seller agrees to promptly replace or correct substitutions of defects in any goods or services not conforming to the foregoing warranties, without expense to Buyer, when notified of such nonconformity by Buyer. Seller, by accepting this Order, acknowledges it knows of the purpose for which the goods or services ordered will be used by Buyer.
(b) General. The above warranties shall be in addition to and not in limitation of any other warranties, express or implied, whether ordinarily extended by Seller or established by statute or common law, course of dealing, usage of trade, or elsewhere set forth in this Order. Buyer’s failure to give notice to Seller of any breach of warranty shall not discharge Seller’s liability therefore so long as Buyer gives notice to Seller within a reasonable time following its discovery of such breach. All warranties, express or implied, shall run and extend to Buyer, its successors, assigns, dealers, agents, customers, and the users of its products as well as Buyer’s Affiliated Entities.
8. BUYER’S RIGHT TO COVER
If Seller repudiates this Order or fails to make delivery within the time specified herein, time being of the essence in connection with this Order, (or, if no time of delivery has been specified, within a reasonable time after acceptance by Seller) or if Buyer rightfully rejects the goods or services or justifiably revokes acceptance thereof, then with respect to any and all goods or services involved, Buyer may pursue any remedy available, including, but without limitation, cancellation of this Order in whole or in part. In addition to recovering so much of the price as has been paid and irrespective of whether Buyer has cancelled this Order, Buyer may “cover” and be entitled to damages as to all goods or services affected whether or not they have been identified in this Order. Buyer may “cover” by making, in good faith and without unreasonable delay, any reasonable purchase of or contract to purchase goods or services in substitution for those due from Seller. Buyer shall recover from Seller as damages the difference between the cost of cover and the contract price together with any incidental or consequential damages. This Order may be cancelled by Buyer without liability for breach of contract in the event of petition in bankruptcy being filed by or against Seller or in the event of the appointment of any receiver.
9. FORCE MAJEURE
Failure of Buyer to take shipments hereunder, if occasioned by fire, epidemics, pandemics, quarantine, explosion, flood, war, accident, interruption of or delay in transportation, labor trouble, governmental regulation, or any other circumstances of like or different character beyond Buyer’s reasonable control, or if occasioned by partial or complete suspension of operations at any of Buyer’s offices or other business locations, shall not subject Buyer to any liability to Seller by reason thereof, but, at Buyer’s option, the total quantity covered by this Order may be reduced by the extent of omitted shipments, or the specified delivery period may be extended by a time equal to that during which shipments shall be so omitted and such shipments shall then be made during the period of extension.
10. INDEPENDENT CONTRACTORS
This Order is solely for the purchase of goods and/or services and does not authorize Seller, as the agent, employee or subcontractor of Buyer for any purpose. Seller assumes all obligations under any state or other governmental authority with respect to persons employed in the performance of services and/or production of the goods to be furnished under this Order, including, but not limited to, the Patient Protection and Affordable Care Act, social security or unemployment insurance legislation, retirement benefits or workmen’s compensation. If Seller’s Personnel (as defined below) providing services to Buyer under this Order are deemed to be Buyer’s employees and, as a result, Buyer is obligated to pay any tax, penalty, assessment, or fine, Seller will indemnify Buyer for all such amounts.
11. PERSONNEL
(a) While at a Buyer facility or if issued a Buyer user identification number that provides access to Buyer’s network and systems (“User ID”), Seller’s employees, agents and subcontractors (“Personnel”) will comply with reasonable requests and standard procedures and policies of Buyer, including: (i) Buyer’s safety and security rules and other rules applicable to those working in such facility; (ii) Buyer’s policies concerning access to and privacy and security of any Buyer computer system and Buyer data to which Seller may have access; and (iii) any other policies communicated to Seller in writing regarding personal and professional conduct generally applicable to such facility or Buyer network or systems access; provided, that Buyer has provided Seller with copies of such rules and policies. Such Personnel will conduct themselves in a businesslike manner. Seller will have a reasonable period of time to become compliant with any requests, procedures, and policies provided to Seller.
(b) Unless authorized in writing by Buyer, all Seller Personnel performing the services at or near Buyer’s facilities will be based in that vicinity, and Buyer will not be responsible for any travel, mileage, or living expenses with respect to such Seller Personnel.
(c) Seller may not use any third party to perform the services without Buyer’s prior written consent. If Buyer so consents to Seller’s use of any such third party, such third party will be considered Seller Personnel hereunder and Seller will remain responsible for: (i) the performance of the services; (ii) all of Seller’s obligations hereunder; (iii) ensuring that such third party abides by all obligations of Seller hereunder pursuant to a binding, written agreement; and (iv) all liabilities incurred by such third party pursuant to such performance.
(d) If Buyer determines in good faith that an individual Seller Personnel: (i) is not conducting him or herself in accordance with Section 11(a); or (ii) is not performing the Services in a satisfactory manner as described in this Order, Buyer may provide Seller with notice thereof, and Seller will, at Buyer’s reasonable request, remove and replace such individual. Buyer reserves the right to deny access to its premises to any such individual on reasonable advance notice to Seller.
12. LIMITATION OF LIABILITY
Buyer’s liability to pay any amount to Seller for any reason shall not exceed the amount Buyer has agreed to pay Seller for the goods or services. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF GOODS AND/OR SERVICES. THIS IS TRUE REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF BUYER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
13. CONFIDENTIAL INFORMATION AND OWNERSHIP OF DELIVERABLES
(a) Ownership of Deliverables. All materials, products, deliverables developed or prepared for Buyer by Seller including but not limited to all information, reports, studies, object or source code, flow charts, diagrams and other tangible or intangible material of any nature whatsoever produced by or as a result of the Services rendered by Seller and all copies of any of the foregoing are the sole and exclusive property of Buyer and all title and interest therein shall vest in Buyer and shall be deemed to be a work made for hire and made in the course of the Services rendered.
(b) Definition of Confidential Information. “Confidential Information” means with respect to Buyer (including its Affiliated Entities, as applicable) information relating to Buyer’s customers; prospective customers; sales and marketing procedures and techniques; financial information; personnel management; facilities; trade secrets; affiliates; procedures; systems; software (whether object code or source code) and related documentation; equipment or network configurations; past, present, or future research or development (including information shared during ideation sessions); business affairs, or that is otherwise learned by Seller in the course of its discussions or business dealings with, or its physical or electronic access to the premises of Buyer, and that has been identified as being proprietary and/or confidential or that a reasonable person would consider proprietary and/or confidential by the nature of the circumstances surrounding the disclosure or receipt of such information. Confidential Information also includes all information concerning the existence and progress of the parties’ dealings, regardless of whether any such information is marked or otherwise identified as confidential.
(c) Nondisclosure of Confidential Information. Seller shall not use or retain Confidential Information (including personally identifiable information “PII”) for any purpose other than the specific purpose of performing the Services under this Order. Except as expressly authorized herein, as reasonably necessary or appropriate to perform Seller’s obligations under this Order, or by prior written consent of Buyer, which consent may be withheld in the Disclosing Party’s sole discretion, Seller will not use, disclose, rent, lease, disseminate, make available, transfer, or otherwise communicate or sell to any third party any of Buyer’s Confidential Information. Seller will not create or maintain data sets that are derived from or derivative works of Buyer’s Confidential Information except for the purpose of performing its obligations under this Order. Seller will not permit any officer, director, employee, agent, other representative, subsidiary, affiliate, or any other person or entity acting on behalf of Seller or any third party to process Confidential Information of Buyer unless: (i) such processing is in compliance with this Order; (ii) such person or entity is bound by written, commercially reasonable, and legally enforceable confidentiality obligations; and (iii) such person or entity has a legitimate business reason and a need to know such information for purposes of this Order. Seller will be responsible for any unauthorized use or disclosure of any of Buyer’s Confidential Information by any third party to whom Seller has disclosed such information. Seller will process Buyer Confidential Information only in compliance with all applicable trade secret, privacy, and data protection laws.
(d) Limitations. Confidential Information shall not include information (i) which is generally known to the public at the time of such disclosure; (ii) which becomes generally known to the public subsequent to the time of such disclosure, but not as a result of disclosure by Seller; (iii) which is legally received by Seller from a third party without restriction; (iv) which is independently developed by Seller; (v) which is approved for release in writing by Buyer whose Confidential Information is to be released; or (vi) which is demanded by a lawful order from any court or any regulatory authority empowered to issue such an order. To the extent permitted by law, Seller agrees to notify Buyer promptly of the receipt of any such order, and to promptly provide Buyer with a copy of such order. If Seller is required to disclose Confidential Information in response to a valid order by a court or other governmental body, as required by law, Seller may disclose such Confidential Information only to the extent legally compelled. Seller will be given an opportunity at its sole cost and expense to oppose any such order or to seek a protective order that protects the Confidential Information at issue before Seller complies with any such court or governmental order.
(e) Treatment of Confidential Information Upon Termination. Upon termination of this Order, Seller will return or securely destroy Buyer’s Confidential Information (including all copies thereof) and all other papers, materials, and other property of Buyer in the Seller’s possession pursuant to this Order and certify that it has returned or effectively destroyed such Confidential Information. Before destroying any of Seller’s Confidential Information, if requested by Seller, Buyer will provide a copy of the same to Seller.
14. GOVERNMENTAL REGULATIONS
Seller warrants that all products delivered pursuant to this Order shall have been produced, sold, priced, and delivered to Buyer in compliance with all federal, state, municipal and local laws, rules, regulations, ordinances, and directions existing at the time of delivery, including, without limitation those relating to import and export controls and sanctions. Seller agrees, upon request, to furnish Buyer with appropriate certificates showing such compliance. Seller agrees to indemnify, defend and hold harmless Buyer, its affiliates, corporate parents, subsidiaries and partners, and all of their agents, attorneys and employees, from and against any and all claims, demands, actions, liabilities, judgments, losses, indirect, consequential or punitive damages, expenses, costs, penalties, and fines, including attorneys’ fees, for injury or alleged injury of any kind to any persons, including death, and/or for damage or alleged damage of any kind to any property arising from or in any way connected with any violation or alleged violation of any law, order or regulation.
15. CHANGES
Buyer may at any time, by written order, make changes within the general scope of this Order in any one or more of the following: (i) drawings, designs or specifications; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this Order, whether changed or not changed by any such order, an equitable adjustment shall be made in the price or delivery schedule, or both, and this Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this clause must be asserted in writing within thirty (30) days of receipt by Buyer of the notification of change; Buyer may, if it decides that the facts justify such action, receive and act upon any such claim asserted at any time prior to final payment under this Order; provided, however, that nothing in this clause shall excuse Seller from proceeding with this Order as changed.
16. WAIVER-MODIFICATIONS
Any failure of Buyer to enforce or require strict performance by Seller of any terms or conditions of this Order shall not constitute a waiver thereof by Buyer, and Buyer may at any time avail itself of the remedies Buyer may have for any breach of the terms hereof. This Order is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of its terms. No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms set forth herein. Acceptance of, or acquiescence in, a course of performance rendered under this, or any prior agreement shall not be relevant or admissible to determine the meaning of this Order even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of this Order other than those specifically set forth herein. This Order shall be modified only by a writing signed by both parties or their duly authorized agents except that Buyer reserves the right unilaterally to correct any clerical or typographical errors.
17. CHOICE OF LAW
The validity, construction and enforcement of this agreement shall be determined and governed by the internal laws of the State of Minnesota.
18. INDEMNIFICATION, HOLD HARMLESS ANDRELEASE
(a) Seller hereby agrees to indemnify, defend and hold harmless Buyer, its affiliates, agents and employees, and any end-users against all liabilities, obligations, claims, loss, damages, fines, penalties, and expense caused or created by Seller, its subcontractors, or the agents and employees of either, whether negligent or not, arising directly or indirectly out of or incident to the performance of this Order and for injuries or alleged injuries arising out of the use by Buyer or others of the goods supplied hereunder.
(b) Seller hereby agrees to indemnify, defend and hold harmless Buyer against any legal action brought against Buyer based on a claim that the goods or services supplied by Seller infringes a United States patent, copyright, trademark or trade secret of a third party, and Seller will pay any final judgment and all costs, damages or attorney’s fees against Buyer in any such action attributable to any such claim or incurred by Buyer through settlement of such claim. Should the goods or services become, or in Seller’s opinion be likely to become, the subject of any such infringement claim, Buyer shall permit Seller, at Seller’s option and expense, to (i) procure for Buyer the right to continue using the goods and/or services, or (ii) replace or modify the goods and/or services so that they become non-infringing and maintain the same functionality, or (iii) terminate the right to use the goods and/or services, whereupon Seller will refund to Buyer all fees paid by Buyer for such goods and/or services.
(c) Seller agrees that, if this Order calls for any work to be done on premises owned, leased or occupied by Buyer
(i) Seller shall indemnify and save harmless Buyer and the owner of such premises against any liability to subcontractors or other third persons under the mechanics, materialmen, labor or other applicable lien laws of the state in which the work is to be performed, and (ii) the last payment called for hereunder may, at Buyer’s option, be made only after Seller shall have first delivered to Buyer an executed contractor’s release.
(d) Seller hereby agrees to indemnify, defend, and hold harmless Buyer and its respective officers, directors, agents, and employees from and against any and all liabilities, third-party claims, costs, damages, expenses, attorneys’ fees, computer forensic examinations, costs of notifications, and/or amounts required by law or payable under any judgment, verdict, court order, fine, or settlement (collectively “Losses”), to the extent such Losses are a result of: (i) a Data Security Incident. A “Data Security Incident” means the actual or reasonably suspected (a) unauthorized access, acquisition, exfiltration, disclosure, theft, loss or misuse of Buyer Confidential Information, or (b) any other inadvertent, unauthorized, or unlawful Processing of Buyer Confidential Information that compromises its security, confidentiality, or integrity, or otherwise creates a substantial risk of identity fraud or theft, regardless of the form of the Confidential Information.
19. RIGHT OF OFFSET
Seller agrees that in the event it fails to meet any obligation relating to the provision of goods and/or services, Buyer may immediately offset any amounts due Seller against any amounts Buyer or any of its affiliates owes Seller (or an Affiliated Entities) under any other Agreement. This provision shall apply regardless of the filing of any bankruptcy or receivership proceeding by Seller. For purposes of this provision, “affiliates” is defined as: (i) Any parent corporation or other controlling entity of Buyer; (ii) Any subsidiary corporation or other entity controlled by Buyer; (iii) Any other corporation or entity which is owned or controlled by a parent, a subsidiary, or other entity which is similarly affiliated with Buyer; and (iv) Any corporation or other entity which acquires all or a substantial portion of Buyer’s assets and which continues the general business conducted by Buyer.
20. TAXES
(a) Buyer and Seller will be responsible for the timely reporting and payment of all taxes legally applicable to and assessable on Buyer and Seller, respectively, in connection with this Order, and any services, labor, or materials furnished by Seller under this Order, including: (i) sales, use, occupation, excise, value-added, business, service, goods and services, consumption, and other similar taxes; (ii) withholding and employment-related taxes and fees; (iii) franchise and property taxes; (iv) customs and duties and other ad valorem taxes and government fees; and (e) its own income taxes.
(b) With regard to taxes paid by Seller in Section 20(a)(i), Buyer will bear the burden of United States federal, state, and local sales, use, and similar taxes imposed on Buyer’s purchase/use of property and Buyer’s receipt of Services (“U.S. Transaction Taxes”). U.S. Transaction Taxes will be separately stated on Seller’s invoices and will be in addition to other charges.
(c) Seller will bear the burden of all other foreign and United States taxes imposed in connection with the transactions contemplated by this Agreement other than: (i) U.S. Transaction Taxes; (ii) withholding and employment-related taxes and fees of individuals not considered Seller’s employees or subcontractors under this Agreement; and (iii) Seller’s own United States (federal, state, and local) franchise, property, and income taxes.
(d) Buyer may withhold from any payments due Seller and remit to the relevant taxing jurisdictions any tax required by law to be withheld and remitted. If Buyer does not withhold based on exemption information provided by Seller in accordance with Section 20(f), Seller will remain responsible for any such unwithheld taxes later assessed against Buyer.
(e) Each party will promptly reimburse the other party for any tax paid by such other party but for which such party is to bear the burden.
(f) The parties will cooperate in good faith to minimize taxes to the extent legally permissible including the timely provision to the other party of any resale exemptions, multiple points of use certificates, treaty certifications, and other exemption information reasonably requested by the other party.
(g) Except as provided in Section 20(h), as used in this Section 20, the word “tax” or “taxes” includes interest imposed thereon and penalties imposed with respect thereto.
(h) Notwithstanding the foregoing, Buyer will not bear the burden of interest and penalties resulting from Seller’s failure to withhold taxes or to charge Buyer taxes or from Seller’s failure to timely and properly file any related tax or other jurisdictional filings, except where such failure is due to an action or inaction by Buyer.
21. ELECTRONIC DOCUMENTS
Buyer hereby gives notice of its right to convert this Order and any related documents to electronic format and retain this Order solely in an electronic format. Buyer may provide this Order in electronic form or may provide a reproduction of this Order from its electronic copy in the event of any dispute regarding the rights and obligations of the Buyer and Seller under this Order. Buyer and Seller agree that any document in electronic format or any document reproduced from an electronic format shall not be denied legal effect, validity, or enforceability and shall meet any requirement to provide an original or hard copy.
ARTICLE I ORDER OF PRECEDENCE
1.1 TERMS AND CONDITIONS. These General Terms and Conditions of Sale (“Terms and Conditions”) shall apply to all sales of products (“Products”) by Hiniker Company, a Minnesota corporation and affiliates (each, as applicable, “Company”), to the buyer identified in Company’s proposal or quotation, or Buyer’s purchase order (“Buyer”).
ARTICLE II PURCHASES
2.1 ACCEPTANCE. Buyer shall be deemed to have accepted and agreed to these Terms and Conditions by purchasing Products from Company pursuant to such proposal, quotation and/or purchase order.
2.2 PURCHASE ORDERS. All sales of Products to Buyer, including sales pursuant to purchase orders placed by Buyer, shall be subject to these Terms and Conditions and an order confirmation from Company accepting the purchase order for the Products (the “Order Confirmation”). These Terms and Conditions, together with the Warranty (as defined below), the Order Acknowledgement and any other document referenced herein are hereby collectively referred to as the “Contract”. If any provision in the Order Acknowledgement is inconsistent with these Terms and Conditions, the provision of the Order Acknowledgement will govern. No additional or different terms or conditions in any purchase order or any modifications, changes or amendments to this Contract shall be binding upon Company unless specifically agreed to in writing signed by an authorized representative of Company. Any additional or different terms already or hereafter proposed by Buyer, whether in a purchase order or other communication or otherwise, are hereby rejected and shall not apply. The lack of objection by Company to any additional, modifying or deleting provisions contained in any purchase orders or other communications from Buyer shall not be construed either as a waiver of the terms of this Contract or as an acceptance by Company of any deviation from this Contract. Fulfillment of Buyer’s order for Products does not constitute acceptance of any additional or different terms, including but not limited to, Buyer’s general terms and conditions of purchase and does not serve to modify or amend this Contract.
2.3 PRICES. All price, delivery and installation quotations made by Company are subject to and conditioned upon the terms of the Terms and Conditions. No order shall be binding upon Company until an Order Confirmation is issued by an authorized representative of Company, or until Company commences performance of the order. Prices for Products are subject to change without notice, provided that Company shall not change the prices of any Products subject to an Order Confirmation. Price quotations, unless otherwise stated, will expire ninety (90) calendar days from the date issued and may be terminated at any time upon notice to Buyer. All prices for Products listed in Company publications are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Company. Unless otherwise set forth in Company’s quotation or the Order Confirmation, prices for Products do not include, and Buyer shall pay Company for, any transportation charges, insurance costs, export/import duties, licenses or fees, or any tax or governmental charge of any nature whatsoever, each of which shall be itemized on Company’s invoices. Company shall have the right to correct any clerical or ministerial errors and/or omissions in any quotation or other documentation and shall not be bound by any such clerical or ministerial errors and/or omissions.
2.4 CHANGE ORDERS/CANCELATIONS Changes and/or additions to the Products in any Order Confirmation shall be made only by a written change order agreed to by Buyer and accepted by Company in writing. Any such written change order shall describe the change in Products, quantity, price and estimated delivery dates affected by the change order.
After 72 hours of Company’s Order Confirmation, if all or part of the purchase order is cancelled by the Buyer, and if there is no contrary written agreement between Company and Buyer, Buyer shall pay termination charges in the amount equal to the greater of:
(a) Ten (10) percent of the net sales price, or
(b) The price provided in the purchase order for all items in process prior to the termination of the Contract, plus, the expenditures made and liabilities incurred by Company in connection with any portion of the purchased items not yet completed.
2.5 TAXES, FEES, AND DUTIES. Unless otherwise set forth in Company’s quotation or the Order Confirmation, all freight, shipping charges, insurance premiums, tariffs, export and import duties, custom broker’s charges, taxes and other such charges shall be paid by Buyer. Any claim for exemption by Buyer shall, if applicable, be effective only after receipt of proper exemption forms by Company. Company will prepare export packaging when requested (at an additional quoted price) and furnish pro forma export invoices and export declarations according to its best ability and judgment, but without liability for fines or other charges due to unintentional error or incorrect declarations.
2.6 SHIPMENT AND DELIVERY. All delivery dates are approximate and conditional upon prompt receipt of all necessary information and required materials. Unless otherwise set forth in the Order Confirmation, all shipments are F.O.B. Ex Works Hiniker Shipping Facility for all deliveries. Company reserves the right to make delivery in instalments, unless otherwise expressly agreed to in this Contract; all such instalments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any instalment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries. Title to and risk of loss of the Products will pass to Buyer when the Products are made available to the carrier at Company’s facility. Buyer shall be responsible for all shipping charges, including but not limited to shipping, transportation, duties and insurance costs. Company’s responsibility for damaged Products ceases upon acceptance by the carrier and all claims for loss or damage occurring after acceptance by the carrier must be filed by Buyer with the carrier. Buyer shall inspect the Products immediately upon delivery to Buyer. In the event of (a) shortage, or (b) visible damage, or (c) concealed damage, or (d) loss occurring prior to acceptance by the carrier, a claim must be made in writing by the Buyer against Company. All claims against the carrier or Company under this Section 2.6 must be made within five (5) days after Buyer’s receipt of Products. Buyer’s failure to timely make any such claim shall constitute unqualified acceptance and a waiver of all such claims by Buyer. Company may, at Company’s option, require Buyer to (i) provide photographs or other documentation of such claim, and (ii) make the Products subject to the claim available for inspection by Company or its authorized representative in order to substantiate the grounds for rejection of the Products. All rejected Products must be returned to Company, at Buyer’s expense, prior to replacement, if any, by Company. Any of the Products whose manufacture or shipment is delayed by or through Buyer, may be placed in storage by Company, and Buyer will be liable for all costs associated with such storage.
2.7 TERMS OF PAYMENT. Upon approval of Buyer’s credit and unless specified otherwise by Company, all Products shall be invoiced upon shipment of the Products; provided, however, that for orders for Products to be shipped outside of the United States, (a) fifty percent (50%) of the total order price shall be paid at the time that the order is placed, and (b) the remaining fifty percent (50%) shall be paid prior to shipment of the Products. Payment of the amount specified in all invoices shall be due within the time period specified in Company’s quotation, the Order Confirmation, or Company’s invoice, as applicable, provided that Company may modify its payment terms from time to time, upon reasonable advanced notice to Buyer. All prices are in U.S. currency, and all payments shall be made in U.S. dollars. A charge of 1½% per month (or the maximum amount allowed by law, if less) will be made on past due accounts, calculated daily and compounded monthly. Buyer shall reimburse Company for all collection costs, court costs, administration costs, investigation costs, attorneys’ fees and all other incidental costs, charges or expenses incurred in the collection of past due amounts or otherwise resulting or arising from any breach by Buyer of this Contract or the Company’s exercise of any of its rights hereunder. Buyer shall not withhold payment of any amount due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s alleged breach, bankruptcy, or otherwise.
2.8 SECURITY INTEREST. To the extent any Products are sold to Buyer on credit, Buyer hereby grants to Company a security interest in all such Products sold to Buyer on credit until such time as the purchase price for such Products has been paid in full to Company. Buyer also hereby authorizes Company to file any initial UCC financing statements, continuation statements or amendments thereto necessary to effectuate and perfect such security interest and the proceeds thereof.
2.9 WARRANTY. The warranty applicable to the particular Products purchased is located at
• Snow and Ice Equipment: https://snowplows.hiniker.com/support/warranty/
• Agricultural Equipment: https://agriculture.hiniker.com/warranty/
and is incorporated herein by reference (“Warranty”).
THE REMEDIES SET FORTH IN THE WARRANTY SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTY. COMPANY MAKES NO OTHER WARRANTIES WHATSOEVER, WHETHER EXPRESS, STATUTORY OR IMPLIED, WITH RESPECT TO THE PRODUCTS INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR CONFORMANCE TO DESCRIPTION, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
2.10 RETURNS. No returns will be accepted without prior written authorization from Company. Company will issue an account credit to Buyer for properly returned Products. Company will inspect all returned Products, and no credit will be issued for Products which have been abused, neglected, altered, modified, or defaced. Returns may be subject to a restocking charge, at Company’s sole discretion.
ARTICLE III INDEMNITY, LIMITATION OF LIABILITY
3.1 BUYER INDEMNITY. EXCEPT AS EXPRESSLY PROVIDED HEREIN, BUYER RELEASES AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY AND ITS OFFICER, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, DEMANDS, CAUSES OF ACTION, SUITS, AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS, AND REASONABLE ATTORNEY’S FEES, ANY OR ALL OF WHICH MAY BE INCURRED BY COMPANY AS A RESULT OF CLAIMS ARISING OUT OF OR OCCURRING IN CONNECTION WITH BODILY INJURY, LOSS OF LIFE, PERSONAL INJURY, EMOTIONAL OR PSYCHOLOGICAL INJURY, PROPERTY DAMAGE, PROPERTY OR WAGE LOSS, LOSS OF BENEFITS, ILLNESS, OR DEATH OF ANY EMPLOYEES OF BUYER DIRECTLY OR INDIRECTLY ARISING OUT OF ANY PRODUCTS PURCHASED BY BUYER FROM COMPANY, INCLUDING WITHOUT LIMITATION ANY LOADING, UNLOADING, INGRESS, OR EGRESS OF PERSONNEL OR CARGO, REGARDLESS OF THE FAULT (OTHER THAN GROSS NEGLIGENCE, WILLFUL MISCONDUCT, MALICE, OR INTENTIONAL TORT), NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE OR OTHERWISE), PRE-EXISTING DEFECT, OR STRICT LIABILITY OF COMPANY, AND ANY THIRD PARTY CLAIMS FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF PRODUCTS MANUFACTURED TO BUYER’S DESIGN OR SPECIFICATIONS. BUYER STIPULATES AND AGREES THAT IT SHALL NOT BE ENTITLED TO INVOKE ANY IMMUNITY IT MAY HAVE UNDER ANY WORKERS COMPENSATION ACT (THE “ACT”) AS A DEFENSE TO ITS OBLIGATIONS TO INDEMNIFY COMPANY PURSUANT TO THIS CONTRACT, IT BEING EXPRESSLY UNDERSTOOD THAT ANY WAIVER OF SUCH IMMUNITY UNDER THIS PARAGRAPH SHALL BE EFFECTIVE ONLY TO THE EXTENT NECESSARY TO PRESERVE THE LEGAL VALIDITY OF BUYER’S INDEMNITY OBLIGATIONS UNDER THIS CONTRACT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT TO THE CONTRARY, SUCH WAIVER SHALL NOT IN ANY WAY IMPAIR BUYER’S IMMUNITY UNDER THE ACT WITH RESPECT TO CLAIMS MADE AGAINST BUYER BY ITS OWN EMPLOYEES.
IN ADDITION, ANY TECHNICAL INFORMATION OR ASSISTANCE THAT THE COMPANY HAS PROVIDED HAS BEEN GIVEN AND ACCEPTED AT BUYER’S RISK AND IS NOT A WARRANTY OR SPECIFICATION. BUYER AGREES THAT IT WILL FAMILIARIZE ITSELF WITH ALL HAZARDS AND PRECAUTIONARY STATEMENTS AND PROCEDURES WITH RESPECT TO THE HANDLING, TRANSPORTATION, USE, MAINTENANCE, AND REPAIR OF THE PRODUCTS AND WILL DEAL WITH THE PRODUCT ACCORDINGLY. BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS COMPANY AND ITS OFFICER, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND PERMITTED ASSIGNS FOR ANY CLAIMS MADE AGAINST COMPANY AND FOR ASSOCIATED DAMAGES AND EXPENSES, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS, AND REASONABLE ATTORNEY’S FEES, ANY OR ALL OF WHICH MAY BE INCURRED BY COMPANY AS A RESULT OF CLAIMS ARISING OUT OF OR OCCURRING IN CONNECTION WITH BODILY INJURY, LOSS OF LIFE, PERSONAL INJURY, EMOTIONAL OR PSYCHOLOGICAL INJURY, PROPERTY DAMAGE, PROPERTY OR WAGE LOSS, LOSS OF BENEFITS, ILLNESS, OR DEATH DUE, IN WHOLE OR IN PART, TO BUYER’S FAILURE TO FAMILIARIZE ITSELF WITH SUCH HAZARDS AND PRECAUTIONARY STATEMENTS AND PROCEDURES, TO MANAGE ACCORDINGLY, OR TO PROVIDE THE INFORMATION AS SET FORTH ABOVE TO ANY THIRD PARTY OR AS REQUIRED BY LAW.
3.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT, EACH PARTY WAIVES ANY CLAIM AGAINST THE OTHER FOR ITS OWN LOST PROFITS OR LOSSES DUE TO BUSINESS INTERRUPTIONS, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES, HOWEVER THE SAME MAY BE CAUSED, REGARDLESS OF THE FAULT (OTHER THAN GROSS NEGLIGENCE, WILLFUL MISCONDUCT, MALICE, OR INTENTIONAL TORT), NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE OR OTHERWISE), PRE-EXISTING DEFECT, OR STRICT LIABILITY OF THE RELEASED PARTY DIRECTLY OR INDIRECTLY ARISING OUT OF ANY PRODUCTS PURCHASED BY BUYER FROM COMPANY. BUYER AGREES THAT, EXCEPT FOR WARRANTY CLAIMS UNDER SECTION 2.9 ABOVE, COMPANY’S ENTIRE LIABILITY, AND BUYER’S EXCLUSIVE REMEDY, IN LAW AND EQUITY OR OTHERWISE WITH RESPECT TO ANY PRODUCTS PURCHASED BY BUYER FROM COMPANY IS SOLELY LIMITED TO THE AMOUNT PAID BY BUYER FOR THE PRODUCTS TO WHICH THE APPLICABLE CLAIM RELATES.
3.3 REMEDIES. THE DAMAGE LIMITATIONS PROVIDED IN THIS CONTRACT AND THE REMEDIES STATED HEREIN SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THE WARRANTY (EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN). THIS LIMITATION ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE.
ARTICLE IV INTELLECTUAL PROPERTY
4.1 CONFIDENTIAL INFORMATION. A party (the “Receiving Party”) shall keep in strict confidence all information which is of a confidential or proprietary nature (including any drawings, memoranda, ideas and information, technical or commercial know-how, specifications, inventions, processes or initiatives) and has been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The Receiving Party shall remain liable for a breach of such obligations by the Receiving Party’s employees, agents and subcontractors. The Receiving Party shall only use or make copies of confidential information (including any reproductions, extracts or analyses of that confidential information) in connection with and to the extent necessary for the purposes of this Contract.
4.2 INTELLECTUAL PROPERTY RIGHTS. Company retains all right, title, and interest in all intellectual property rights related to the Products, and Buyer hereby assigns to Company any right that it may be deemed to own therein. The sale of any Products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property ownership or license whatsoever.
ARTICLE V FORCE MAJEURE
5.2 FORCE MAJEURE AND ALLOCATION. Company shall not be liable for damages under the Contract for a delay or failure in its performance under the Contract as a result of causes beyond its reasonable control, including any law, order, regulation, direction, or request of any government having or claiming to have jurisdiction over Company, its subcontractors and/or its suppliers; failure or delay of transportation; insurrection, riots, national emergencies, war, acts of public enemies, strikes or inability to obtain necessary labor, manufacturing facilities, material or components from Company’s usual sources; pandemics; fires, floods or other catastrophes; acts of God, acts of omissions of Buyer or any causes beyond the reasonable control of Company and/or of its suppliers. Upon the giving of prompt written notice to Buyer of any such causes of a delay or failure in its performance of any obligation under this Contract, the time of performance by Company shall be extended to the extent and for the period that its performance of said obligations is prevented by such cause. If shortages occur in Company’s supply of Products, or any materials, components, or parts (“Materials”) necessary to produce the Products for any reason, Company shall, without obligation to obtain similar Products or Materials from other sources, have the right to allocate among its customers in accordance with Section 2-615 of the Uniform Commercial Code.
ARTICLE VI APPLICABLE LAWS AND JURISDICTION
6.1 GOVERNING LAW. This Contract shall be governed by and be construed in accordance with laws of the State of Minnesota without regard to conflict of laws principles.
6.2 CONSENT TO FORUM. Buyer hereby consents to the jurisdiction of any state or federal court located within Blue Earth County, Minnesota and consents that it may be served with any process or paper by registered mail or by personal service within or outside the State of Minnesota in accordance with applicable law. Furthermore, Buyer waives and agrees not to assert in any such action, suit or proceeding that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum or that venue of the action, suit or proceeding is improper. Nothing contained in this Section 6.2 shall limit or restrict the right of Company to commence any proceeding in the federal or state courts located in the state where Buyer resides or maintains its chief executive offices, as applicable, or in any other state, to the extent Company deems such proceeding necessary or advisable to exercise remedies available under the Contract.
ARTICLE VII
TERMINATION. In addition to all other remedies available under the Contract or at law (which Company does not waive by the exercise of any rights under the Contract), (i) if Buyer fails to pay any amount when due hereunder, (ii) if the financial condition of the Buyer becomes impaired or unsatisfactory to Company, in its sole discretion, or (iii) in the event of Buyer’s bankruptcy or insolvency, Company shall be entitled to (a) suspend the delivery of any Products and/or modify the payment terms applicable to Buyer under this or any other agreement between the parties, or (b) terminate the Contract immediately by written notice to Buyer. Upon such termination, Buyer shall pay Company for all Products delivered, all costs of labor, work in progress, non-cancellable materials on order and all other costs incurred by Company prior to the effective date of termination in connection with the Contract.
ARTICLE VIII MISCELLANEOUS
8.1 SEVERABILITY. Wherever possible, each provision of this Contract shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Contract shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Contract.
8.2 WAIVER. Either party’s failure at any time to require strict performance by the other of any of the terms or provisions of this Contract shall not waive or diminish that party’s rights thereafter to demand strict compliance therewith or with any other provision. No waiver by either party of any of the provisions of the Contract is effective unless explicitly set forth in writing and signed by such waiving party. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
8.3 AMENDMENTS. The Contract is the exclusive agreement between the parties relating to the subject matter hereof and supersedes all trade custom and all prior or contemporaneous understandings, writings, proposals, representations or communications, oral or written, of either party. The Contract may only be amended in writing stating specifically that it amends these Terms and Conditions by authorized representatives of both parties.
8.4 CAPTIONS AND HEADINGS. The captions and headings of Articles and Sections of this Contract are for convenience and reference only and in no way define, limit, or describe the scope or intent of this Contract or any provision thereof.
8.5 BINDING EFFECT. This Contract shall be binding upon and inure to the benefit of Company, Buyer and their respective successors and permitted assignees. Buyer shall not assign its rights or obligations under this Contract (by operation of law or otherwise) without the prior written consent of Company, which consent will not be unreasonably withheld. For purposes of this Contract, assignment shall include a change in control of Buyer in which more than fifty percent (50%) of the equity interests of Buyer cease to be beneficially owned by the equity holders of Buyer as of the date the Products are purchased by Buyer.
8.6 COMPLIANCE WITH LAW. Each party will comply with U.S. Federal, state, and local laws and regulations applicable to it as of the date of the Order Confirmation.
8.7 EXPORT CONTROLS. Buyer acknowledges that all shipments by Company are or may be subject to restrictions and limitations imposed by United States export controls, trade regulations, and trade sanctions. Buyer at all times will comply with such sanctions, controls and regulations and will cause compliance with such sanctions, controls and regulations in its use and disposition of the Products. With respect to each Product shipment pursuant to this Contract, Buyer will obtain and supply to Company in writing all information required by Company to obtain any U.S. export license, permit, approval or documentation applicable to such shipment. Notwithstanding any contrary provision in this Contract, Company will have no obligation to make any shipment to Buyer until it has received all such information and has obtained the applicable licenses, permits, approvals or documentation for shipment, if any.
8.8 SURVIVAL. Sections 2.6, 2.7, 2.8, 2.9, 2.10 and Articles III, IV, VI, VII and VIII will survive the expiration or earlier termination of the Contract, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination.
8.9 RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
8.10 SEVERAL LIABILITY. Each Contract constitutes a separate and independent agreement between Buyer and each Company. It is hereby agreed and understood among the parties that there is no joint and several liability between or among each Company and Buyer, each Company shall be severally liable to the extent of its respective obligations and liabilities hereunder, the specific party identified as the seller of the Products in the applicable Contract shall be the party responsible for such Contract, and no Company shall be deemed a guarantor or surety with respect to the obligations or liabilities of any other Company. If Buyer has a claim or cause of action against a Company based on breach or non-performance of a Contract by a Company, Buyer’s claim or cause of action shall be against the Company which provided the applicable Products to which the claim or cause of action relates.