CNC Metal Solutions, LLC, a Minnesota limited liability company, dba CNC Metalcraft (“CNC Metalcraft”)
STANDARD TERMS AND CONDITIONS OF SALE
The following stand terms and conditions (these “Terms and Conditions”) shall govern the sale by CNC Metalcraft of all goods (the “Products”) to the buyer (“Buyer”) identified in the document to which these Terms and Conditions, are attached or referenced (such document, together with these Terms and Conditions, are collectively referred to as this “Contract”). To the extent any terms in the document to which these Terms and Conditions are attached or referenced are inconsistent with these Terms and Conditions:
The terms set forth in this Terms and Conditions shall govern and control this Contract.
BUYER’S ACCEPTANCE OF THIS CONTRACT IS LIMITED TO ACCEPTANCE OF THE EXPRESS TERMS OF THIS CONTRACT. ANY PROPOSAL FOR ADDITIONAL OR DIFFERENT TERMS OR ANY ATTEMPT BY BUYER TO VARY IN ANY DEGREE ANY OF THER TERMS OF THIS CONTRACT IN BUYER’S ACCEPTANCE IS HERVY OBJECTED TO AND REJECTED BY CNC METALCRAFT. CNC METALCRAFT HEREBY OBJECTS TO ANY TERMS PROPOSED BY BUYER IN BUYER’S ORDER, ACCEPTANCE OR ACKNOWLEGMENT OF THAT ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS AND CONDITIONS.
THIS CONTRACT CONSTITUES THE FINAL, ENTIRE AGREEMENT PERTAINING OT THE SALE TO BUYER OF THE PRODUCTS DESCRIBED IN THIS CONTRACT AND ANY AND ALL PRIOR UNDERSTANDINGS, AGREEMENTS AND REPRESENTATION, ORAL OR WRITTEN, SHALL BE DEEMED SUPERSEDED BY AND MERGED INTO THIS CONTRACT. AGENTS AND SALESMEN OF CNC METALCRAFT HAVE NO AUTHORITY TO MAKE REPRESTATION, WARRANTIES OR AGREEMENT NOT INCLUDED IN THIS CONTRACT. AGENTS AND SALESMEN OF CNC METALCRAFT HAVE NO AUTHORITY TO MAKE ANY REPRESTATION, WARRANTIES OR AGREEMENT NOT INCLUDED IN THIS CONTRACT.
- PRICES AND QUOTATIONS
- The price for all Products sold by CNC Metalcraft to Buyer is subject to agreement between CNC Metalcraft and Buyer.
- Price quotations from CNC Metalcraft are good for thirty (30) days from the time of quotation. All quotations are subject to but not limited to material availability and market fluctuations.
- ORDER PROCEDURE
- All orders are subject to written acceptance by CNC Metalcraft unless the order is submitted in response to a firm written offer from CNC Metalcraft. A sales Order Acknowledgment executed by a duly authorized officer of CNC Metalcraft shall be deemed to be a firm written offer from CNC Metalcraft.
- STANDARD CONDITIONS OF SALE APPLYING TO PRODUCTS
- GOVERNING LAW:
- This Contract is deemed made in the [State of Minnesota] and shall be interpreted under the Uniform Commercial Code and other laws of the [State of Minnesota] in force at the date of such document, without regard to the conflicts of laws principles of such State and specifically excluding the provisions of the 1980 U.N Convention on Contracts for the International Sale of Goods.
- PRICE; TAXES:
- The Products covered by this Contract shall be sold and invoiced at CNC Metalcraft’s prices and charges as agreed to in this Contract or otherwise agree to in writing by CNC Metalcraft and Buyer. Prices do not include sales, excise, use or other similar taxes now in effect or hereafter levied by reason of this Contract or the transactions contemplated there by all of which shall be paid by Buyer. Such taxes shall be assessed by against Buyer at the time of invoice unless CNC Metalcraft has received an exemption certificate or other similar evidence in form satisfactory to CNC Metalcraft. CNC Metalcraft reserves the right to invoice such taxes at a later time if such exemption was or is asserted to be inapplicable or invalid.
- PAYMENT TERMS; NO SETOFF:
- Payment terms are net 30 days from date of invoice unless a different period is stated elsewhere in this Contract. Buyer shall be liable for the price of all Products substantially conforming to this Contract, notwithstanding that Buyer may not have accepted, or may have revoked acceptance of same. Buyer shall not be entitled to deduct, counterclaim, or set off against the price of such Products or any other amount owing under this Contact any claim or alleged claim arising out of this Contract or any other transaction with CNC Metalcraft.
- If payment is not received by the due date, a service charge will be added at the rate of one percent (1%) per month (12% per year) or the maximum legal rate of interest, whichever is less, to unpaid invoices and other unpaid amounts from the due date thereof.
- Any remittances received by a bank or other depository of CNC Metalcraft in connection with this Contract will be received by such bank or depository solely as a clearing agency. Such receiving bank or depository has no authority to determine whether the amount remitted constitutes payment in full. Remittances marked to indicate “payment in full” or other similar expressions my be deposited by such bank or depository notwithstanding such markings and such deposit shall not indicate CNC Metalcrafts acceptance of the remittance as payment in full and shall not otherwise be treated as an election by, or an impairment of any right of, CNC Metalcraft unless expressly agree in writing by CNC Metalcraft.
- CNC Metalcraft may, at any time and in its sole discretion, limit or cancel the credit of Buyer as to time and amounts, and as a consequence, may demand payment in cash before delivery of any unfilled portion of this Contract, and may demand assurance of Buyer’s due performance including without limitation demanding that one or more deposits, letters of credit or other assurance be provided by Buyer. Upon make such demand, CNC Metalcraft may suspend production, shipment and/or deliveries until Buyer has provided such assurance. If within the period stated in such demand, but in no event longer than 30 days, Buyer fails to agree and comply with such different terms of payment, and /or fails to give adequate assurance of due performance, CNC Metalcraft may, in its sole discretion and without any requirement to do so, (1) by notice to Buyer, treat such failure or refusal as repudiation by Buyer of the portion of this Contract not then fully performed, whereupon CNC Metalcraft may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable, or (2) make shipment under reservation of a security interest and demand payment against tender of documents of title. If CNC Metalcraft retains a collection agency and/or attorney to collect overdue amounts, all collections costs, including attorneys’ fees, shall be payable by Buyer upon demand by CNC Metalcraft. Buyer hereby represent to CNC Metalcraft that buyer is now solvent, that it has all requisite power and authority to enter into this Contract, that the execution, delivery and performance of this Contract does and will not conflict with or result in a breach of any contract to which it is a party or by which its assets may be bound, and that no other person other than CNC Metalcraft has or will have a security interest in the Products covered by this Contract until performance in full by Buyer of its obligations under this Contract. Buyer further agrees that each acceptance of delivery of the Products sold under this Contract shall constitute the remaking of each of these representations at such time.
- DELAY; CHANGE:
- Any change in delivery schedule and/or quantity which is made at Buyer’s request shall be cause for price redetermination. Delivery reschedules are also subject to an additional charge of one percent (1%) of the selling price per month if rescheduled within 60 days immediately preceding the current schedule date. The applicable reschedule charge will be invoiced at the time such rescheduling is agreed by CNC Metalcraft.
- Buyer may cancel an order at any time prior to shipment by CNC Metalcraft by delivering written notice to CNC Metalcraft; provided, however that Buyer will be responsible for a cancellation charge of 20% of the price of the cancelled Products, plus the amount of all direct and indirect costs incurred by CNC Metalcraft with respect to the cancelled order, including without limitation those incurred after receipt of any written cancellation notice.
- SEVERAL SHIPMENTS:
- CNC Metalcraft may make delivery in installments and may render a separate invoice for each installment, which invoice shall be paid when due, without regard to subsequent deliveries. Each installment shall be deemed a separate sale. Delay in delivery of any installment shall not relieve Buyer of its obligation to accept delivery of remaining installments. Each delivery shall be paid for on the due date, as provided in this Contract, without offset, defense or counterclaim and regardless of controversies relation to any delivered or undelivered Products.
- TITLE; RISK OF LOSS; INSURANCE:
- Title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when CNC Metalcraft or its agent delivers such shipment shall remain subject to CNC Metalcrafts rights of stoppage in transit, rights of reclamation and other legal rights of CNC Metalcraft. If a a strike, embargo governmental action or any other cause beyond CNC Metalcrafts control prevents shipment or delivery to Buyer or his agents, or if shipping instructions for any shipment are not received before any shipment date, or if payment is to be made on or before delivery, title and risk of loss shall pass to Buyer as soon as the shipment has been set aside by CNC Metalcraft and invoiced to Buyer (subject to CNC Metalcrafts rights as an unpaid CNC Metalcraft) and payment shall be made in accordance with invoice as thought the Products had been shipped and accepted by Buyer and CNC Metalcraft shall be under no duty to carry insurance thereafter.
- Where a delivery date is specified by CNC Metalcraft, that date reflects CNC Metalcraft best estimate for the probable time required for completion of Buyer’s order. CNC Metalcraft will use reasonable and diligent efforts to effect shipment on or before the date indicated. CNC Metalcraft shall no be liable, directly, or indirectly, for any delay or failure in performance or delivery or inability to perform or deliver, including without limitation where such delay, failure or inability arise or results form any cause beyond CNC Metalcraft’s control or beyond the control of CNC Metalcrafts suppliers or contractor, including. But not limited to, strike, boycott, or other labor disputes, embargo, governmental regulation, inability or delaying in obtaining materials. IN NO EVENT SHALL CNC METALCRAFT, IN THE EVENT OF DELAYS OR IN ANY OTHER CIRCUMSTANCES, BE LIABLE TO BUYER OR ANY THIRDS PARTIES FOR ANY CONSEQENTIAL, SPECIAL, PUNITIVE OR CONTINGENT DAMAGES, EVEN IF CNC METALCRAFT SHALL BE ADVISED BY BUYER OF THE POSSIBILTY THEREOF. In the even of any such delay or failure in performance, CN Metalcraft shall also have the right, to the extent necessary in CNC Metalcrafts reasonable judgement, to apportion fairly among its various customer in such manner as CNC Metalcraft may consider equitable Products then available for delivery. If, as a result of any such contingency, CNC Metalcraft is unable to perform under this Contract in whole or in part, then, to the extent that it is unable to perform, this Contract shall be deemed terminated without liability to either party but shall remain in affect as to the unaffected portion of this Contract, if any.
- START UP:
- If the sale price includes assistance by CNC Metalcraft in installation or training Buyer’s personnel, Buyer is responsible for adequate and timely site preparation (including the maintenance f appropriate insurance) and the availability of its personnel. Installation or training time incurred by CNC Metalcraft in excess of the amounts expressly included in the sales price will be charged to Buyer at then prevailing rates.
- DURATION. Commencing on date on which title to the Products passes to Buyer pursuant to Section e above, and subject to paragraph ii below, CNC Metalcraft warrants that for a period of [twelve (12) months] (the “Warranty Period”) the Products, under normal use and service, will be free in all material respects from defective design, material and faulty workmanship and shall operate in all material respects in compliance with applicable specifications. CNC Metalcraft shall deliver Products free and clear of any third part liens or encumbrances.
- REMEDIES. If the Products do not meet CNC Metalcrafts warranty during the Warranty Period, CNC Metalcraft will, as Buyer’s sole and exclusive remedy, (a) repair, replace or modify the Products, as CNC Metalcraft may elect, and ship the Products within thirty (30) calendar days after receipt by CNC Metalcraft of the returned Products. CNC Metalcraft will provide Buyer with shipping and packaging instructions along with the address to where the Products are to be returned. Buyer is responsible for packaging the Products according to the instructions and shipping it to CNC Metalcrafts designated manufacturing facility. All warranty service Products shall be shipped fright prepaid, and Buyer shall bear all costs and the risk of loss of, or damage to, the Products until their arrival at CNC Metalcrafts designated service facility. Freight collect shipments will not be accepted. CNC Metalcraft will prepay return freight charges only on repaired and replaced Products found to be defective. Buyer shall be responsible for any premium transportation expenses related to the return of repaired or replaced Products. CNC Metalcraft may charge Buyer its standard rates for any repair or replacement work performed on returned Products that were not in breach of CNC Metalcrafts warranties. Expenses such as personnel travel, product removal, re-installation, late penalties, back charges, or any other consequential damages will not be accepted by CNC Metalcraft.
- LIMITATION ON WARRANTY. CNC Metalcraft warranties are void if: (a) Product is integrated or assembled by Buyer with other products; (b) the Products is repaired or altered by anyone other than CNC Metalcraft or an authorized representative of CNC Metalcraft, unless expressly authorized in writing by CNC Metalcraft and in strict accordance with the applicable Specification; (c) the Product is improperly handled, stored, installed or maintained by anyone other than CNC Metalcraft; (d) an person, other than CNC Metalcraft certified technicians, removes the housing the Products or disassembles the Products; or (e) the Product is used in violation of the applicable specification or CNC Metalcraft’s instructions or subjected to misuse, neglect, accident or abuse. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER STATUTORY, EXPRESS, AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TOM WARRANTIES OF MECHATABILITY, NON-INFRINGEMENT, FITNESS FOR PARTICILUAR PURPISE, OR ERROR-FREE OPERTAION, WHICH ARE ALL EXPRESSLY DISCLAIMED EXCEPT AS PROVIDED HEREIN.
- CONFIDENTIALITY: Any drawings, data, designs, technical information, trade secrets or other proprietary or non-public information supplied by CNC Metalcraft to Buyer in connection with the sale of any Products shall remain CNC Metalcraft property and be held in confided by Purchaser, such information shall not be reproduced or disclosed to others without CNC Metalcraft’s prior written consent. Notwithstanding the provisions of Paragraph 20 hereof, Buyer acknowledges that CNC Metalcraft would be irreparably harmed by the disclosure of such information in violation of this Contract and CNC metalcraft shall be entitled to specific performance in the event of any breach or threated breach of the Paragraph 16 by buyer.
- LIMITATION OF CNC METALCRAFTS LIABILITY:
- NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING SET FOURTH IN THIS CONTRACT (INCLUDING ITS ATTACHEMNTS) TO THE CONTRARY, IN NO EVENT SHALL CNC METALCRAFT BE RESPONSIBLE OR LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR ANTICAPTD PROFUTES, OR FOR ANY INDCIDENTAL, CONSEQUENTIAL, INDRIECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONENCTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF CNC METALCRAFT’S OBLIGATIONS UNDER THIS CONTRACT (INCLUDING ANY ATTACHMENTS HERETO)
- LIMIT ON LIABILITY. THE MACIMUM LIABILITY OF CNC METALCRAFT, AND ITS RELATED PARTIES, TAKES AS A WHOLE, FOR ANY AND ALL CLAIMES IN CONNECTION WITH THIS CONTRACT AND THE PRODCUTS, INCLDUINT BUT NOT LIMTIED TO CLAIMS FOR BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICIT LIABILITY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, SHALL IN NO CIRCUMSTANCE EXCEED THE PURCHASE PRICE OF SUCH PRODUCTS ACTUALLY PAID TO CNC METALCRAFT.
- TIME LIMITATION. ANY ACTION FOR BREACH OF THIS AGREEMENT OR TO ENFORCE ANY RIGHT HEREUNDER SHALL BE COMMECNCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTIONS ACCRUSES, OR REASONALU COULD HAVE BEEN DISCOVERED, OR IT SHALL BE DEEMED WAIVED AND BARRED.
- CNC METALCRAFT REMEDIES: If Buyer fails, with or without cause, to furnish CNC Metalcraft with specification and/or instructions for, or refuses to accept deliveries of, any of the Products sold under this Contract, or is otherwise in default under or repudiates all or any party of this Contract or any other contract with CNC Metalcraft or fails to pay when due any invoice under this Contract or any other contract with CNC Metalcraft, then, in addition to any and all remedies allowed by law, CNC Metalcraft without notice: (1) may bill and declare due and payable all undelivered products under this Contract and/or any other contract between CNC metalcraft and Buyer and/or (2) may defer shipment under this Contract and/or any other contract between Buyer and CNC Metalcraft until such default, breach or repudiation is removed and/or (3) may cancel any undelivered portion of this Contract and/or any other contract in whole or in part. Buyer shall remain liable for all damages suffered or incurred by CNC Metalcraft in any such circumstances.
- DISPUTE RESOLTUIONS: In the event of any dispute arising out of or relating to this Contract (other than a dispute arising out of Buyer’s failure to pay for any Products in whole or in part), representatives of the parties shall meet promptly in a good faith effort to resolve the dispute without resort to court proceedings. If the dispute is not resolved by the parties within thirty (30) days after the representatives’ first meeting or the dispute concern the failure of Buyer to pay for any Products in whole or in part, then either party may commence an action to resolve the dispute in the courts of [Hennepin County, Minnesota] and each of the parties irrevocably submit to the exclusive jurisdiction of such courts , waives any objection it may now or hereafter have as to venue or as to convenience of forum, and agrees that all claims in respect of such dispute be heard and determined only in such courts. Process in any such dispute may be served on any party anywhere in the world. Buyer and CNC Metalcraft consent to service of process by personal delivery or by postage prepaid, certified U.S. mail, mailed to the address of such party set forth in this Contract.
- ASSIGNMENT: This Contract and Buyer’s rights and obligations hereunder may not be assigned, pledged, hypothecated, or otherwise transferred by Buyer except with the prior written approval of CNC Metalcraft, which shall not be unreasonably withheld or delayed.
- WAIVER: Waiver by CNC Metalcraft of any provisions of this Contract or of a breach by Buyer of any provision, as well as all other provision of this Contract, shall remain in full force and effect.
- CLERICAL ERRORS: Stenographic and clerical errors contained in this Contract are subject to correction by CNC Metalcraft.
- AMENDMENT OR MODIFICATION: This Contract may only be amended, modified, supplemented, or cancelled in a written document signed by CNC Metalcraft and Buyer. The signature of on party hereto shall be insufficient t modify the terms of this Contract.
- HEADING AND DEFINITIONS: The heading and definitions in this Contract are inserted for convenience only and shall not constitute a part hereof.
- SEVERABILITY: If any provision of this Contract shall be held to be unenforceable or invalid, such provision shall be ineffective to the extent of such prohibitions or invalidity, and the balance of this Contract shall be interpreted as if such provision were so excluded.