Terms and Conditions
Effective November 15, 2019
These Terms and Conditions only apply to the purchase of equipment as specified on the quote and purchase order, which are incorporated herein by reference. The license to and use of the software program set forth on the quote and purchase order is governed by that certain SaaS End User License Agreement agreed to and accessible through the software program.
PAYMENT. Terms of payment are net thirty (30) days from the date of invoice. If, in the Seller's opinion, the financial condition of the Buyer at any time or any other circumstance does not justify the incurrence of production costs or shipment on the terms specified, the Seller may require partial or full payment for products in advance.
DELIVERY & SHIPMENT. Unless otherwise stated in the quotation, transfer of title and risk of loss for shipments will transfer EXW at the time of shipment in Lincoln, Nebraska. Equipment is packaged in “best commercial practice.” Buyer shall bear the expense of all other packaging. If Buyer fails to specify a mode of shipment, Seller will select a reasonable mode of transportation. All costs of shipment, including duties, tariffs, and taxes, are the responsibility of the Buyer.
QUOTATION AND PRICES. Quoted prices are firm for ninety (90) days and thereafter are subject to change without notice after ninety (90) days; provided, however, notwithstanding the foregoing, quoted prices may also be changed or modified by Seller at any time without notice due to cost increases (1) of imported products, (2) of raw materials or supplies, or (3) based upon increases in import or export tariffs, trade disputes, or currency fluctuations.
TAXES. The quotation does not include any applicable sales, use, revenue, excise, or any other taxes for products sold or delivered unless they are specifically stated. Seller will collect any such taxes that it is required to collect, unless Buyer provides to Seller an acceptable sale and use tax exemption certificate.
LIMITED PRODUCT WARRANTY. Products manufactured by Seller are warranted for a period of one (1) year from date of shipment against defective materials and workmanship (the “Warranty Period”). SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS HEREBY DISCLAIMED AND EXCLUDED. This limited warranty does not extend to labor charges or other costs related to the removal and/or replacement of defective products or services. Any technical advice or services furnished by Seller with respect to the products is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyer's sole risk and expense. If the products are being acquired for resale, Buyer will make, in connection with any such resale, only those warranties contained herein and will indemnify Seller and its officers, directors, agents, employees, affiliates, successors, and assigns against any claims, causes of actions and judgments which arise from any representations, warranties, or agreements made by or entered into by Buyer, other than those contained herein.
WARRANTY EXCLUSIONS. Notwithstanding Seller’s Limited Product Warranty, products that have been or are (1) damaged by accident, corrosion, the elements, abuse, misuse, misapplication, vandalism, negligence, improper transportation, handling, storage, use or lack of proper and reasonable maintenance, (2) repaired or altered by anyone other than Seller or its authorized service providers, (3) modified or altered without Seller’s written authorization, or (4) specially manufactured by Seller as per specifications provided by Buyer, are expressly excluded from Seller’s Limited Product Warranty.
THIRD PARTY PRODUCTS. With regard to sale of products manufactured by third parties or any parts, accessories, and other goods manufactured by third parties (“Third Party Goods”), Seller will, to the extent contractually permitted, assign to Buyer all warranties extended to Seller by the manufacturer of such Third Party Goods. Buyer shall be solely responsible for compliance with the terms and conditions of any such warranties on Third Party Goods. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WITH REGARD TO THIRD PARTY GOODS.
LIMITATION OF LIABILITY. SELLER'S SOLE LIABILITY AND OBLIGATION FOR A BREACH OF THE WARRANTY OR ANY OTHER PROVISIONS OF THESE TERMS AND CONDITIONS SHALL BE TO REPAIR OR REPLACE THE SPECIFIC NONCONFORMING PRODUCT(S) OR TO CREDIT OR REFUND THE PURCHASE PRICE ACTUALLY PAID FOR SUCH NONCONFORMING PRODUCT(S), AS SELLER MAY ELECT. SELLER’S LIABILITY ON ANY CLAIM, WHETHER GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY THEORY OF STRICT LIABILITY OR OTHERWISE, OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS AND CONDITIONS OR THE PERFORMANCE OR BREACH HEREOF OR THE PRODUCTS OR THEIR PERFORMANCE OR USE IS LIMITED SOLELY AND EXCLUSIVELY TO THE REMEDIES PROVIDED ABOVE AND NO OTHER RIGHT OR REMEDY WILL BE AVAILABLE TO BUYER OR TO ANY PERSON OR ENTITY. SELLER SHALL IN NO EVENT BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY PENALTIES OF ANY KIND, ANY LOSS OF PROFITS OR ANY OTHER ECONOMIC LOSS, WHETHER OR NOT FORESEEABLE, TO ANY PERSON, PROPERTY OR ENTITY, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE PRODUCTS, WHETHER GROUNDED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY THEORY OF STRICT LIABILITY OR OTHERWISE.
LOSS, DAMAGE, OR DELAY. SELLER SHALL NOT BE LIABLE FOR LOSS, DAMAGE, OR DELAY RESULTING FROM CAUSES BEYOND ITS REASONABLE CONTROL OR CAUSED BY STRIKES OR LABOR DIFFICULTIES, LOCKOUTS, ACTS OR OMISSIONS OF ANY GOVERNMENTAL AUTHORITY OR BUYER, INSURRECTION OR RIOT, WAR, ACTS OF TERRORISM, COMPUTER VIRUSES, FIRES, FLOODS, FINANCIAL OR ECONOMIC CRISIS, ACTS OF GOD, BREAKDOWN OF ESSENTIAL MACHINERY, ACCIDENTS, EMBARGOES, MATERIAL SHORTAGES, DELAYS IN TRANSPORTATION, DAMAGE TO PRODUCTS WHILE IN TRANSIT, OR INABILITY TO OBTAIN LABOR, MATERIALS OR PARTS FROM USUAL SOURCES WITH RESPECT TO THE PRODUCTS. IN THE EVENT OF ANY DELAY, PERFORMANCE WILL BE POSTPONED BY SUCH LENGTH OF TIME AS MAY BE REASONABLY NECESSARY TO COMPENSATE FOR THE DELAY. IN THE EVENT PERFORMANCE BY SELLER OF ANY ORDER FROM BUYER CANNOT BE ACCOMPLISHED BY SELLER DUE TO ANY ACTION OF GOVERNMENTAL AGENCIES, OR ANY LAWS, RULES OR REGULATIONS OF ANY GOVERNMENTAL AGENCY, SELLER (AT ITS OPTION) MAY CANCEL BUYER’S ORDER WITHOUT LIABILITY.
LIMITATION OF CLAIMS. In addition to Buyer's inspection obligation set forth in Section 9 hereof, and notwithstanding any custom of trade or course dealing between Seller and Buyer, failure of Buyer to give notice of any claim for breach of warranty within ninety (90) days after the defect in the product is discovered or reasonably should have been discovered by Buyer or the expiration of the Warranty Period, whichever is earlier, shall constitute an unqualified waiver by Buyer of all claims with respect thereto, including the right to receive a refund of or credit for the purchase price or repair or replacement of the products.
ASSUMPTION OF RISK. Buyer assumes all risk and liability whatsoever for any and all injuries (including death), losses or damages to persons or property or otherwise resulting from or arising in connection with Buyer's possession, handling, storage, transportation, use, sale, or other disposition of any products sold or manufactured, whether used alone or in conjunction with other products, or incorporated in a finished product, and Buyer agrees to indemnify and hold harmless Seller, its officers, directors, agents, employees, affiliates, successors, and assigns from and against any and all damages (including consequential and incidental damages), costs, claims, suits, judgments, liabilities and expenses (including attorney's fees) arising out of or in connection with any of the foregoing.
INSPECTION AND REJECTION OF NON-CONFORMING GOODS. Buyer shall examine the products hereunder upon its receipt of the products and shall promptly notify Seller in writing of any shortage, loss, or damage apparent under reasonable examination. Failure by Buyer to send such notification to Seller within ten (10) days after Buyer’s receipt of such products (which the parties agree is a reasonable time) shall constitute acceptance of such products and an absolute and unconditional waiver of all claims for such shortage, loss, or nonconforming products.
RETURN OF GOODS. In no case may products or parts be returned without Seller's prior written permission. Products or parts returned in conformity with the above Limited Product Warranty (Section 5) must be shipped with transportation charges prepaid and must be accompanied by an explanation, reasonably satisfactory to Seller, of the nature of the asserted noncompliance with Seller’s Limited Product Warranty. All other returns must be shipped with transportation charges prepaid and will be subject to a restocking charge of 25%. Only products of standard Seller manufacture will be accepted for return. Products that are specifically modified or produced to Buyer’s specifications will not be accepted for return.
CONTRACT INFORMATION. A binding contract shall not be effective until a quote signed by the Customer and written purchase order is received at Seller's office in Lincoln, NE and the purchase order accepted in writing by an authorized employee of the Seller at its office. THE TERMS AND CONDITIONS IN SELLER'S QUOTATION OR ACKNOWLEDGEMENT AND THESE STANDARD TERMS AND CONDITIONS OF SALE SHALL GOVERN THE CONTRACT AND ANY DIFFERENT OR ADDITIONAL TERMS IN BUYER'S PURCHASE ORDER, UNLESS APPROVED BY SELLER’S PRESIDENT OR CHIEF EXECUTIVE OFFICER IN WRITING, ARE HEREBY OBJECTED TO AND REJECTED, BUYER WILL BE DEEMED TO HAVE ACCEPTED THESE STANDARD TERMS AND CONDITIONS OF SALE UNLESS WRITTEN NOTICE OF REJECTION IS RECEIVED BY SELLER WITHIN TEN (10) DAYS AFTER BUYER'S RECEIPT OF THESE STANDARD TERMS AND CONDITIONS OF SALE, IN ANY EVENT, BUYER'S ACCEPTANCE OF DELIVERY OF THE PRODUCTS SOLD HEREUNDER SHALL BE DEEMED TO CONSTITUTE BUYER'S ASSENT TO THESE TERMS AND CONDITIONS AND BUYER'S WAIVER OF ALL TERMS AND CONDITIONS PROPOSED BY BUYER IN WRITING OR OTHERWISE THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE SET FORTH IN THESE STANDARD TERMS AND CONDITIONS OF SALE.
NO WAIVER. Failure of Seller to object to any terms that now or in the future appear in any document or form of Buyer shall not be construed as a waiver of the provisions of these terms and conditions nor an acceptance of any such term. Seller’s failure or delay in insisting on strict performance of any of these terms or conditions or in exercising any right, power or privilege hereunder, at any time, shall not operate as a waiver of the same, nor shall Seller's waiver of any breach hereunder constitute a waiver of any other terms, conditions, or privileges, whether of the same or similar type.
GOVERNING LAW. These Standard Terms and Conditions of Sale shall be construed and enforced in accordance with the internal laws of the State of Nebraska, without reference to its choice of law provisions. Jurisdiction and venue for any lawsuits relating to these terms and conditions and/or sale of products by Seller shall be proper only in the state and federal courts in the State of Nebraska. Buyer hereby consents to service of process by registered or certified mail, return receipt requested, to it at its address set forth in Seller's records.
NOTWITHSTANDING THE TERMS HEREOF, TO THE EXTENT PROHIBITED, LIMITED OR OTHERWISE RESTRICTED BY APPLICABLE STATE LAW, NO EXCLUSION, MODIFICATION, OR LIMITATION HEREIN OF ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHERWISE APPLICABLE TO PRODUCTS MANUFACTURED BY SELLER OR ANY REMEDY PROVIDED TO BUYER BY LAW, INCLUDING THE MEASURE OF DAMAGES, SHALL APPLY IN STATES, SUCH AS KANSAS, THAT DO NOT ALLOW SUCH EXCLUSION, MODIFICATION OR LIMITATION. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE, SUCH LIMITATIONS CONTAINED HEREIN SHALL NOT BE APPLICABLE TO THE EXTENT THAT SUCH LIMITATIONS CONFLICT WITH APPLICABLE LAW, HOWEVER, ALL REMAINING PROVISIONS HEREOF SHALL REMAIN VALID. THE LIMITED PRODUCT WARRANTY GIVES BUYER SPECIFIC LEGAL RIGHTS, AND BUYER MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. SELLER AND BUYER AGREE THAT THE TERMS OF THIS LIMITED PRODUCT WARRANTY SHALL BE DEEMED, WITHOUT ANY FURTHER ACTION BY THE PARTIES HERETO, TO BE LIMITED TO THE EXTENT ALLOWABLE UNDER SUCH APPLICABLE STATE LAW.