NORTHWIRE, INC.: TERMS AND CONDITIONS OF SALE
1. APPLICATION OF TERMS. The following terms and conditions shall govern the sale by Northwire, Inc. ("Seller") to the entity ("Customer") named on the invoice or quotation or order acknowledgment (hereinafter referred to as “Order”) that will be provided to Customer for the sale of products sold by Seller (the "Product(s)").
2. PAYMENT TERMS; ORDERS AND QUOTES. All Orders are not binding on Seller unless accepted by Seller. Acceptance is determined at the sole discretion of Seller and Orders can be rejected for any reason at any time. Customer may not cancel or modify Orders, except with Seller's written consent. Any quotation provided by Seller will be valid for the duration stated in the quotation. If no duration is stated, such quotation will be valid for 14 calendar days. If Buyer requests changes in the Products or delays progress of the manufacture or shipment of the Products, the contract price shall be adjusted to reflect increases in the selling price caused thereby. Customer shall pay invoices within 30 calendar days from the date of the invoices unless Seller has agreed to other terms, in writing, or unless Seller requires advance payment, C.O.D. payment, or credit card payment. International deliveries require irrevocable letter of credit, or payment by Visa or MasterCard, unless Seller has agreed to other terms in writing. Electronic transfer of funds upon shipping is also acceptable; however, the Customer is responsible for any fees associated with electronic transfer of funds. All quotes and sales are in U.S. dollar currency.
3. SHIPPING; TAXES. All Products purchased by Customer will be shipped F.O.B. Seller's facilities. When applicable, taxes will be added to the invoice as a separate charge to be paid by Customer prior to Delivery. Prices on Products specified do not include any city, state or federal excise taxes, including, without limitation shipping and handling charges, taxes on manufacture, sales, use, receipts, excise, gross receipts, gross income, occupation, use , import and export taxes or similar taxes, customs charges or duties or other charges imposed by governmental entities. Customer is responsible for all such taxes and charges unless Seller has agreed to other terms in writing.
4. TITLE AND RISK OF LOSS; DELIVERY. Title and risk of loss shall pass to Customer upon delivery to Customer from Seller's facility. "Delivery" shall mean the point at which Seller or Seller's agent turns over possession of the Products to any of the following: Customer, Customer's employee or agent, a common carrier, or Customer's warehouse, and not necessarily the final destination shown on the Order. Seller may deliver the Products ordered in installments. Any Delivery or shipment dates given by Seller are estimates only and Seller is not liable for any loss, damage, cost or expense for any failure to deliver in accordance with the given Delivery or shipment date.
5. DISCLAIMER OF WARRANTIES. With the exception of any separate written warranty provided by Seller for the Products being sold, Seller makes no representations or warranties regarding the Products being sold and all warranties, express or implied, are hereby disclaimed (including implied warranties of merchantability and fitness for a particular purpose). No oral or written information or advice given by Seller, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of any warranty, and no such persons have authority to modify any aspect of any warranty or create any other warranties. Products are sold with the express understanding that their life and fitness for purposes are indeterminate and largely depend on application and operating circumstances. No warranty is made with respect to equipment, accessories, component parts or auxiliary equipment not manufactured by Seller. Seller shall in no event be responsible or liable for modifications, alterations, misuse, misapplications, installations or repairs made to Seller’s Products by Customer or others or for damage caused thereto by negligence, accident, overloading or improper use by Customer or others. Seller shall not be liable to Customer or any third party for consequential damages directly or indirectly arising or resulting from breach of any terms hereof, or from the sale or the use of Products sold.
6. LIMITATION OF DAMAGES. Under no circumstances shall Seller be liable for any indirect, special, punitive, incidental, or consequential damages resulting from the sale or use of the Products, whether based upon breach of warranty, breach of contract, negligence, strict liability or any other legal theory, and the liability of Seller in connection with such sale or use of any Products shall not exceed the price of the Products on which such liability is based. Such damages include, but are not limited to, loss of profits, loss of revenue, loss of use of the Products or any hardware system associated equipment, cost of capital, cost of substitute or replacement equipment, facilities or services, down time, purchaser's time, claims of third parties, including Customers, and injury to property.
7. SPECIAL ORDERS. Products manufactured by Seller to meet Customer’s particular specifications or requirements, Customer shall indemnify and hold Seller harmless from any and all claims arising from the purchase, use, or sale of the special Products, and from any related costs, attorneys’ fees, expenses, or liabilities incurred by Seller therefrom.
8. SELLER PRODUCTS AVAILABILITY. Product availability may be limited. Products may not be available for immediate Delivery. Seller reserves the right, without liability or prior notice, to revise or cease to make available any or all Products.
9. CANCELLATIONS. Customer may not cancel or change an Order less than 45 days prior to Delivery without the written consent of Seller.
10. FORCE MAJEURE. Seller shall not be liable if it is unable to perform any of its obligations contained in these terms and conditions due to, directly or indirectly, the failure of Seller's supplier to deliver as promised; sabotage; failure or delays in transportation, utility service or communication systems; any labor or industrial dispute; shortages of labor, fuel, supplies or equipment; war; flood; explosion; natural disaster or terrorism; or any other event beyond the control of Seller.
11. GOVERNING LAW AND JURISDICTION. The sale of Products by Seller to Customer shall be governed by the laws of the State of Minnesota, without regard to its conflict of law provisions. All legal actions arising out of or relating to sale of Products by Seller to Customer shall be heard and determined exclusively in a state or federal court sitting in Minneapolis, Minnesota, USA, and Customer consents to the personal jurisdiction of such courts.
12. EXPORT CONTROL. Products purchased or received under these terms and conditions shall be subject to export laws and regulations of the United States of America, and Customer agrees to comply with such export laws and regulations.
13. SECURITY INTEREST. Seller reserves a purchase money security interest in all Products and any proceeds thereof until any and all payments and charges are paid in full. Customer shall reasonably assist Seller in perfecting such security interest.
14. NO ASSIGNMENT. Customer may not assign its rights or obligations under these terms and conditions without the express written consent of Seller.
15. RETURN POLICY. In accordance with the terms of the Uniform Commercial Code, as adopted by the State of Minnesota, Seller will arrange for a 100% reimbursement or replacement of the Products rightfully rejected for defective material or workmanship within ninety (90) calendar days from date of shipment. The failure of Customer to notify Seller in writing that the Products are nonconforming within ten (10) calendar days of Seller’s tender and Delivery of the Products shall constitute the acceptance of the Products and Customer shall be liable to Seller for the total Order price. Due to Seller's unique "No Minimum Cut-to-Length" offering, Seller cannot accept returns for any reason other than stated above. Seller requires a Return Material Authorization (RMA) number on all returns. The quantity of bulk cable Customer receives will be within the industry standards of +/-10% Order quantity. For Orders less than 20,000 ft (6,000 m) Seller may adjust the manufacturing quantity to compensate for processing losses. The Order acknowledgement Customer receives will show the manufacturing quantity. Seller will invoice for the actual quantity shipped which will be within +/-10% of Customer Order quantity.
16. REMEDIES. In the event that Customer is in default or otherwise breaches the Order or this Agreement, Seller shall be entitled to pursue any and all remedies, legal or equitable including an action to recover the total Order price, as well as its costs of enforcing the Order, including, without limitation, its attorneys’ fees. In the event that Seller is in default or otherwise breaches the Order, the liability of Seller to Customer for such breach or default shall be limited to the replacement value of the Products under the Order which is the sole and exclusive remedy of Customer for any such breach or default.
17. NOTICES. All notices required to be given under this Agreement shall be given in writing and shall be effective when a record has been actually delivered, deposited in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown upon the Order, received electronically by fax, by telecopy or received through the Internet. Any party may change its address for notices under this Agreement by giving formal written notice to the other party, specifying that the purpose of the notice is to change the parties address.
18. INTEREST AND FEES. In the event of any dispute arising out of the Order, this Agreement or the transaction described therein, in addition to an award of damages, the Seller shall be entitled to recover: (1) pre-judgment interest on any amount awarded at a rate of 1 ½ % per month, (2) all expenses of litigation, including without limitation all filing fees and court costs; and (3) all attorney’s fees incurred regardless of whether such fees or expenses are incurred before or after the initiation of litigation.
19. ENTIRE AGREEMENT. The Terms and Conditions of Sale are intended by the parties as a final expression of the terms and conditions of the Order. Customer agrees to be bound by and accepts these terms and conditions and acknowledges that these terms and conditions supersede any purchase order or similar document place by Customer and are conditions to Seller’s obligations hereunder. Any attempt to modify, supplement or amend these terms and conditions will be void unless agreed to in writing by Seller. Seller retains the right to revise or modify these Terms and Conditions of Sale at any time without notice, with said revisions and modifications applying to sales of Products subsequent thereto. No previous course of dealing between the parties or trade usage may be used to interpret, limit, or otherwise impair the operation of this agreement.