XETEX, INC. TERMS & CONDITIONS OF SALE
ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS OF SALES (“TERMS”) AND AS CONTAINED IN XETEX’S INVOICE AND ARE ALSO SUBJECT TO XETEX’S CREDIT AND OTHER POLICIES AND PROCEDURES, WHICH ARE HEREBY INCORPORATED BY REFERENCE AND SUBJECT TO CHANGE.
1. TERMS TO GOVERN: These Terms shall be binding upon XeteX Inc, and its subsidiaries and affiliates ("Seller") and the buyer (“Buyer”). No modification, amendment or change, whether in Buyer’s purchase order, shipping release forms or otherwise shall obligate Seller, unless authorized in writing by Seller. Any different or inconsistent terms and conditions contained in Buyer’s forms whether issued before or after Seller’s quotation are hereby expressly superseded by these Terms.
2. ACCEPTANCE & PRICES: Any proposal offered by Seller to Buyer is valid for sixty (60) days from Seller’s issuance. Upon the expiration of sixty (60) days or sooner if revoked by Seller, the proposal shall expire. Pricing shall remain valid for Seller’s products shipped within 120 days from the date of Seller’s acceptance. Thereafter, prices are subject to change. Prices include transportation charges predicated on a single shipment and any partial shipments may result in additional cost to Buyer. Seller reserves the right, at any time, to withdraw a bid, quote or a price that contains an error.
3. PAYMENT & TAXES: Upon credit approval, payment terms for Products shipped hereunder or labor performed will be thirty (30) days net with no retainages unless contrary terms appear on the face hereof or otherwise expressly agreed to in writing by Seller. Should Buyer default in the timely payment to Seller of sums due on an order, Seller is entitled to any remedies provided in these Terms or by law. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of the lesser of one and one-half percent (1.5%) per month or the maximum allowable legal interest rate, along with all costs and expenses (including without limitation mechanics lien or bond, collection expenses, reasonable attorneys' fees, filing and service fees and disbursements and Court costs) incurred by Seller. Buyer is responsible for all sales, customs, or use tax imposed by any governmental agency, including, but not limited to, Federal, State, Local or international authorities, payable on the transaction under any applicable statute, except those taxes due as a result of Seller’s gross profits. If Seller is not timely paid or Buyer is otherwise in default, Seller reserves the right to pause or terminate any work or services in process and/or reschedule any delivery at any time.
4. PERFORMANCE: Seller shall be obligated to furnish only the Products or labor described in the applicable purchase order or acknowledgement and agreed to in writing. The duty to perform under any order on the part of Seller and the price thereof is subject to the approval of its Credit Department, and is contingent upon the absence of strikes, accidents, floods, act(s) of terrorism, war, fires, fuel shortages, the inability to procure materials from the usual sources of supply, the requirements of the US Government (through the use of priorities or preference or any other manner) that Seller divert either the material or the furnished Product to the direct or indirect benefit of the US Government, or upon any like or unlike cause beyond the reasonable control of Seller. Upon disapproval of the Credit Department or upon the occurrence of any such event, Seller may delay performance or, at its option, renegotiate prices and terms and conditions of sale with Buyer. If Seller elects to renegotiate and Seller and Buyer are unable to agree on revised prices or terms, Seller may cancel without any liability.
5. SHIPMENT & RISK OF LOSS: Shipment dates are estimates only, FOB factory. Title and risk of loss shall pass to Buyer upon Seller’s delivery to carrier. Customers may only make their own shipping arrangements with Seller’s agreement. Seller shall advise when the Products have been completed and send an invoice at that time. All Product must be picked up by Buyer within 30 days of Seller’s completion of manufacture. Seller specifically rejects any order containing a time is of the essence clause or liquidated damage penalties for late shipments. Seller is not responsible for loss of goods from shortages, damages or transit delays. Any claims for damage in shipment, misdelivery, loss of the Products or other damage shall be the responsibility of and filed by Buyer.
6. CHANGES, CANCELLATION & RETURNS: Changes requested by Buyer following Seller’s acceptance of order must be approved by Seller in writing and may result in an increase in price by Seller to recover all labor and material costs, including normal overhead and profit. If any portion of a Seller accepted order is cancelled by Buyer without default on the part of Seller or without Seller's written consent, Buyer shall be liable to Seller for cancellation charges including, but not limited to, Seller's incurred costs and the profit Seller would have realized from the transaction had the agreement not been breached by Buyer. Products shall not be returned except by written permission of Seller pursuant to Seller’s return policy.
7. AUTHORITY OF AGENTS: No agent, employee or representative of Seller has the authority to bind Seller to any affirmation, representation or warranty concerning the Product or labor sold, except for Seller’s authorized agents, employees or representatives.
8. INDEMNITY: Seller shall protect and indemnify Buyer from and against all claims, damages, judgments and loss solely arising from Seller’s infringement or alleged infringement of any United States patent by any of the articles or material delivered hereunder, provided that in the event of suit or threat of suit for patent infringement, Seller shall promptly be notified and given full opportunity to negotiate a settlement. Seller does not warrant against infringement by reason of Buyer's design of the articles or the use thereof in combination with other materials, or in the operation of any process. In the event of litigation, Buyer agrees reasonably to cooperate with Seller. All parties concerned shall be entitled, in connection with any proceeding under the provisions of this Article, to be represented by counsel at their own expense. Buyer shall defend, indemnify and hold Seller harmless from any personal injury, wrongful death or property damage caused in whole or in part by Buyer’s breach, negligent or intentional act(s).
9. LIMITED WARRANTY: Seller warrants that at the time of delivery and for a period of twelve (12) months from the initial startup (“Start-Up”), or eighteen (18) months from date of shipment, whichever is less, Products will be free from defects in material and manufacture provided that Products have been installed with proper Start-Up, maintained and operated under normal conditions for service in accordance with the instructions of Seller, and that Products have the capacities and ratings set forth in Seller's design specifications. No warranty is made against corrosion, erosion or deterioration. At Seller’s option, Seller's obligations and liabilities under this warranty are limited to repair of Products or replacement of components for Products not conforming to this warranty. This Limited warranty does not cover labor for component repair or replacement. Once Seller’s service department has been notified and approved any warranty related service work, Seller will repair or replace components as needed and ship FOB factory. Seller shall not be obligated to pay for the cost of lost refrigerant. Consumable parts and Products that are consumable in nature are explicitly excluded from this warranty. Consumables include, but are not limited to, belts, filters, and refrigerant. No warranty or liability whatever shall attach to Seller until full payment has been received. No warranty herein extended shall apply to repair or correction of conditions arising from improper or incorrectly connected air duct, piping, wiring, power supply, blown fuses, freezing, improper Product control when programmed by non-Seller controls, or personnel, or by anyone other than Seller employee or its representative. Operation of Products for temporary conditioning of a building during construction without the written consent of an officer of the Seller immediately voids any warranty coverage. If the Product is replaced, the replacement may not be new, but will be in good working order and at least functionally equivalent to the item or Product replaced. The replacement assumes the warranty status of the replaced Product. The warranty period does not restart. THIS LIMITED WARRANTY IS VOIDED BY MISUSE, NEGLECT, FAILURE TO FOLLOW INSTRUCTIONS OR SELLER’S MANUALS OR TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER’S PRIOR WRITTEN APPROVAL OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER. THE WARRANTY AND LIABILITY SET FORTH HEREIN REPRESENT BUYER’S EXCLUSIVE REMEDY AND ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES WHETHER IN CONTRACT, TORT, WARRANTY OR IN NEGLIGENCE, EXPRESSED OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. SELLER PROVIDES NO INDEPENDENT WARRANTY FOR THIRD PARTY PRODUCTS OR COMPONENTS SOLD TOGETHER OR INCORPORATED WITH SELLER’S PRODUCT(S).
10. LIABILITY DISCLAIMER: TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER’S TOTAL LIABILITY FOR CLAIMS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT OR WARRANTY), SHALL BE LIMITED TO THE FEES PAID TO SELLER BY BUYER FOR THE PRODUCTS OR LABOR THAT WAS THE PROXIMATE CAUSE OF THE DAMAGE. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INDIRECT DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR CLAIMS OF THIRD PARTIES) THAT MIGHT OCCUR AS A RESULT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT OR IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WHETHER BY CONTRACT, TORT, WARRANTY OR OTHERWISE. SELLE R SHALL NOT BE LIABLE OR RESPONSBLE FOR ANY CRANE, RIGGING, LABOR OR OTHER CHARGES OR DAMAGES OF ANY KIND OR NATURE CAUSED IN WHOLE OR IN PART BY DELAYS IN SHIPMENT OR SELLER’S BREACH.
11. ASSIGNMENT: Buyer may not assign or transfer this agreement. Seller may assign its rights or obligations under this Agreement in the event of a merger or change of control of Seller.
12. GOVERNING LAW: This Agreement shall be governed and construed in accordance with the laws State of Minnesota. Buyer consents to jurisdiction in the Circuit Court of Hennepin County, Minnesota. Each party consents to that choice of law and jurisdiction and irrevocably waives any objection to same.
13. EXPORT CONTROLS: Buyer shall comply with the export laws and regulations of the United States. Buyer agrees it shall not export or enter into an agreement for the export any goods from Seller to any prohibited or embargoed country or to any denied, blocked or restricted person or entity.
14. MISCELLANEOUS: Seller’s waiver or failure to enforce the terms of this Agreement shall not constitute a waiver of Seller’s rights. The prevailing party may recover their reasonable attorney fees and reasonable out-of-pocket expenses.
Version 3 03-29-18