Terms & Conditions

Terms and Conditions for Customers

HK Research Corporation (“Buyer”)

  1. Applicability

1.1. Scope.  These terms & conditions of sale (T&Cs) shall apply to all goods (Products) that the above-named company and its affiliates (Seller) sell and/or deliver to you and/or your affiliates (Buyer).  Buyer hereby accepts these T&Cs as a condition to the purchase of any Products from Seller.  Buyer’s acceptance of Products constitutes Buyer’s irrevocable acceptance of these T&Cs.  These T&Cs are binding on both Buyer and Seller (the Parties).1.2. No Additional or Different Terms.  These T&Cs are intended as a complete and exclusive statement of the terms of the agreement between the Parties.  Seller’s offer to sell and deliver Products is expressly limited to these T&Cs.  Seller hereby objects to any additional or different terms contained in any Buyer purchase order, order acknowledgement, conditions of purchase, or other Buyer document or communication of any kind (Contrary Communication).  Every such Contrary Communication shall be of no force or effect, except to the extent otherwise provided in ¶ 1.3 below.1.3. Modification by Supply Contract.  These T&Cs may be modified only by a writing that is signed by Seller’s authorized representative [¶ 9.4] and by Buyer (Supply Contract).  When a conflict arises between these T&Cs and an existing Supply Contract, the provisions of the existing Supply Contract will control.

  1. Contract Formation

2.1. Firm Offers.  Either Party may withdraw its offer at any time prior to acceptance by the other Party, unless a “firm offer” is made.  In order to be a firm offer, there must be written assurance that the offer itself will be held open.  Firm offers remain open for one month from the date of that writing, or if longer, the period stated (but never more than 3 months).2.2. Acceptance by Seller.  An offer by Buyer to purchase Products shall be deemed accepted by Seller if and only if (i) Seller sends Buyer a written acceptance or other written confirmation of any kind; (ii) Seller ships the Products to Buyer or hires a carrier to transport such Products; or (iii) Seller starts to manufacture the Products, orders them from an affiliated or independent manufacturer, or otherwise acts to its detriment in reliance on Buyer’s offer.2.3. Cancellation by Buyer and Product Returns.  No order for Products from Seller may be cancelled or changed by Buyer after acceptance by Seller without the prior written approval of Seller.  Under no circumstances may Buyer return any Products to Seller without Seller’s prior written authorization.

  1. Price and Terms

3.1. Price.  The price shall be Seller’s price in effect at the time of shipment.  A different price shall apply only if the other price is contained in a Supply Contract [¶ 1.3], a firm offer [¶ 2.1], a writing provided by Seller’s customer service department, or a writing that is signed by Seller’s authorized representative [¶ 9.4].3.2. Other Charges.  Buyer is responsible for and shall reimburse Seller for all taxes, excises, and other charges that Seller is required to pay to any government or taxing authority upon the sale, production, or transportation of the Products (other than income taxes).  If omitted from an invoice, Seller may bill Buyer subsequently.  Buyer shall reimburse Seller for all demurrage charges due to Buyer’s failure to unload and return delivery equipment in a timely manner.  Seller may also charge Buyer for unusual packaging, special labeling requirements, and other appropriate charges.3.3. Payment Terms.  Except as authorized by Seller in writing, Buyer shall pay the entire amount it then owes Seller with no setoffs or discounts.  Payment shall be “collect on delivery” (COD) unless Seller has extended credit in writing.3.4. Credit Terms.  Whenever Seller has extended credit, Buyer’s terms are Net 30, unless a different period is stated in a Supply Contract [¶ 1.3], a firm offer [¶ 2.1], a writing from Seller’s credit department, or a writing signed by Seller’s authorized representative [¶ 9.4].3.4.1. Due Date for Invoices.  An invoice will be sent by Seller to Buyer on the same date Product is shipped. Payment terms are always measured from the invoice date.  To be timely, Buyer’s payment must be received by Seller within that time.  A payment mailed by the due date, but received afterwards, is a late payment.3.4.2. Missed or Late Payments.  If a payment is missed or late, Seller may (i) accelerate Buyer’s outstanding debt, (ii) decline or suspend deliveries, (iii) change future terms to COD or “COD plus,” (iv) demand credit enhancements, and/or (v) require any other credit requirements Seller in good faith deems appropriate.3.4.3. Additional Rights.  Seller may also exercise the rights in ¶ 3.4.2 above if Buyer fails to provide financial statements or other financial data requested by Seller, or in accordance with UCC § 1-309, when Seller in good faith believes its prospects for obtaining payment or performance from Buyer have been impaired.3.5. PMSI.  Seller may claim a purchase money security interest (PMSI) in the Products until Buyer pays for them in full.  Seller is hereby authorized by Buyer to notify its other secured creditors of this PMSI, file financing statements, and take any and all other actions required to make this PMSI enforceable by Seller under UCC § 9-312 and other laws.

  1. Delivery

4.1. Title & Risk of Loss.  Unless agreed by Seller in writing, Seller may select the method of shipment and the carrier. Except as provided in ¶ 4.1.1 and ¶ 4.1.2 below or as Seller agrees in writing, all shipments are FOB shipping point, and title & risk of loss pass from Seller to Buyer when Seller delivers the Products to the carrier at the shipping point.4.1.1 Bulk Shipments.  All bulk shipments are FOB shipping point.  Title & risk of loss pass from Seller to Buyer when the Products pass the flange of the transportation vehicle.4.1.2 Seller Motor Vehicles.  All shipments on Seller motor vehicles are FOB delivery point.  Title & risk of loss pass from Seller to Buyer upon arrival at the dock of Buyer’s facility.4.2. Transportation Costs.  Shipments are freight prepaid & allowed for Product shipped by bulk shipments [¶ 4.1.1], Seller motor vehicles [¶ 4.1.2], or when Seller otherwise agrees in writing.  In all other cases, the shipment shall be freight collect.  When an independent motor carrier is used, Seller may sign the Section 7 block on the Bill Of Lading.4.3. Delivery Date.  Buyer understands that Seller’s delivery times are only estimates, and are always subject to factory schedules, production limits, and other factors.  Under no circumstances shall Seller be liable for a late delivery unless otherwise stated in a Supply Contract [¶ 1.3] or a writing signed by Seller’s authorized representative [¶ 9.4].4.4. Inspection Requirement.  Following receipt, Buyer shall promptly (i) inspect the Products to see if they conform to Buyer’s order, and (ii) perform all quality control tests needed to determine whether the Products delivered to Buyer conform to its order.  Weights and quantities within two percent (2%) of the amount ordered shall be deemed to be a conforming shipment (provided, however, that Buyer need only pay for the amount which Seller actually shipped).4.4.1. Notice Requirement.  Buyer must notify Seller in writing of any Product shortage, damage, or nonconformity within 10 days following delivery (or, for defects that cannot reasonably be discovered within such time, within 10 days from when Buyer should reasonably have discovered the defect).4.4.2. Failure to Give Timely Notice.  Notwithstanding anything else in these T&Cs or in the UCC to the contrary, unless Buyer gives timely notice pursuant to ¶ 4.4.1 above, Buyer shall have no claim against Seller for any alleged Product shortage, damage, or nonconformity (and all such claims are deemed to have been waived).  If Product is used, it shall be considered unequivocal acceptance of the same and conclusive evidence that it is not defective and is of the character and type ordered.4.5. Carrier Claims.  Buyer is solely responsible for filing claims against a carrier for Products shipped FOB shipping point under ¶ 4.1 and ¶ 4.1.1 that Buyer did not receive, were received in damaged condition, or for which Buyer has other claims against the carrier.  Seller will provide Buyer with all information that Buyer reasonably requires for its claim. 

  1. Warranties

5.1. In General.  Seller hereby warrants to Buyer that at the time of shipment its Products shall conform to Seller’s written specifications (Specs).  The preceding warranties do not cover damage to the Product or any other damages of any kind that result from or arise out of (i) improper use of the Product, (ii) storage below 40 degrees F. or above 77 degrees F., and/or (iii) Buyer’s failure to take any other precautions described by Seller in its product literature. BUYER UNDERSTANDS AND AGREES THAT THE FOLLOWING PROVISIONS ARE A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES:5.1.1. Warranty of Good Title.  Seller hereby warrants to Buyer that (i) the title in the Products conveyed from Seller to Buyer is good and its transfer rightful; and (ii) the Products are delivered free of all security interests, liens, and liens (except for any PMSI of Seller and other liens filed of record to which Buyer previously consented).5.1.2. Warranty of Non-Infringement.   Seller warrants to Buyer that the Products do not infringe any U.S. patent.  However, such warranty does not cover any claims of infringement arising as a result of a modification of the Products, combination of the Products with other goods, and Seller’s compliance with Buyer’s Specs.  In the event of any of the foregoing, Buyer must hold Seller harmless against any such claims.5.1.3. UCC § 2-313.  Buyer may include in its Specs all properties it wants and, upon Seller’s written acceptance, those Specs are governed by ¶ 5.1 above.  Except to the extent expressly included in Specs, Buyer agrees that the basis of the bargain between the Parties does NOT include (i) any affirmation of fact or promise by Seller relating to the Products, (ii) any description of the Products, or (iii) any warranty that the Products shall conform to any model or sample of either Party.  Buyer hereby waives all rights to assert anything to the contrary. Seller makes no warranty concerning Buyer’s particular application of any Product.5.1.4. Other Express Warranties.  Seller makes no other express warranty of any kind.  Other express warranties are binding on Seller if and only if they are made in writing and signed by Seller’s authorized representative [¶ 9.4].   No written or oral statement from any other person shall be an express warranty enforceable against Seller.  Buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary.5.2. Implied Warranties.  SELLER HEREBY DISCLAIMS ALL OF THE IMPLIED WARRANTIES IN THE UCC AND ANY OTHER APPLICABLE LAW. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.5.3. Odd Lot Products.  Certain Products— called odd lot in the industry — have wide specifications and are typically sold at low cost as a result (Odd Lot).  Notwithstanding anything in ¶ 5.1 above to the contrary, all Odd Lot is sold AS IS and with NO warranties.  Seller describes its Odd Lot as such to buyers and stamps Odd Lot on the invoices.

  1. Claims and Remedies

6.1. Remedies.   No monetary award shall ever exceed the purchase price of the Products at issue.  Alternatively, Seller may, at its option, (i) accept return of the Products and credit the Buyer for their price, and/or (ii) repair or replace the nonconforming Products.  These remedies are exclusive; under no circumstance shall these remedies be deemed to fail their essential purpose.  Buyer understands and agrees to the preceding, and hereby waives all rights to assert anything to the contrary. Seller shall not be liable for a breach of warranty unless: (a) Buyer gives written notice of the defect, reasonably described, to Seller as prescribed in ¶ 4.4.1; (b) Seller is given a reasonable opportunity to inspect the allegedly defective Products; and (c) Seller verifies Buyer’s claim that the Products are defective.6.2. Damages Not Recoverable.  EXCEPT AS PROHIBITED BY LAW, NEITHER PARTY SHALL RECOVER ANY (i) CONSEQUENTIAL OR INCIDENTAL DAMAGES, (ii) LOST PROFITS OR DAMAGES FOR LOST BUSINESS OPPORTUNITIES, (iii) WAGES FOR SALARIED PERSONNEL OR OTHERS PAYABLE IN ANY EVENT, (iv) PERSONAL INJURY DAMAGES, (v) DAMAGES TO EQUIPMENT OR ANY OTHER PROPERTY DAMAGES OF ANY KIND, (vi) ENVIRONMENTAL OR NATURAL LOSSES, AND (vii) PUNITIVE, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES.6.3. Loser Pays.  Plaintiff is the “prevailing party” — and defendant is the “losing party” — whenever plaintiff is awarded (i) at least 67% of plaintiff’s monetary demand, and/or (ii) a substantial portion of plaintiff’s request for injunctive relief.  If plaintiff is awarded neither of the preceding, then the “prevailing party” is defendant and the “losing party” is plaintiff.6.3.1. Costs & Disbursements.  In all cases, the losing party must pay all of the prevailing party’s costs and disbursements including, without limitation, fees and expenses of expert witnesses.  However, neither Party may recover for time spent by its employees or any of their travel costs, hotel charges, meals, or related items.6.3.2. Arbitration Expenses.  In arbitration proceedings, the losing party must pay directly or provide reimbursement for (i) all AAA filing fees and other AAA charges, and (ii) all of the arbitrator’s fees and expenses.6.3.3. Attorney Fees.  In all cases, the losing party shall pay the prevailing party’s reasonable attorney fees and their expenses.  A contingency fee up to one-third (1/3) is reasonable.  Legal fees may be charged by outside attorneys and, despite ¶ 6.3.1 above, by in-house counsel (provided there is no double counting).6.4. Interest.  Any claim by Seller against Buyer for a liquidated sum, or by Buyer against Seller for a liquidated sum, shall accrue interest on the unpaid amount at the rate of eighteen percent (18%), or if less, at the maximum legal rate.6.5. Collection Costs.  Until the award is paid in full, interest shall accrue on the unpaid amount at the rate in ¶ 6.4 above.  In the event the full payment is not made within 30 days of the award, the prevailing party shall be entitled to recover all of its reasonable collection coasts, including additional attorney fees relating to collection of those unpaid amounts.

  1. Dispute Resolution

7.1. In General.  These dispute resolution provisions may be modified by the Parties in writing.  Nothing herein prevents the Parties from utilizing mediation to the extent they so agree.  As used below, the amount of a Party’s requested claim or counterclaim excludes (i) interest; (ii) the monetary value of injunctive relief sought; (iii) any arbitration and arbitrator fees; (iv) all costs, disbursements, and attorney fees; and (v) damages not recoverable hereunder [¶ 6.2].7.2. Claims of $150,000 or Less — Court.   Any controversy or claim arising out of or relating to these T&Cs or the contract between the Parties, or the breach thereof, shall be resolved by a court under the provisions below whenever the Parties’ claims and counterclaims are each $150,000 or less (even if the aggregate exceeds that dollar threshold).7.2.1. Exclusive Jurisdiction & Venue.  The court proceeding must be commenced in a federal or state district court in the Minneapolis-St. Paul Standard Metropolitan Statistical Area, and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the Parties.7.2.2. Buyer Consent to Jurisdiction & Venue.  Buyer (i) consents to the jurisdiction and venue of the above courts, (ii) waives any right to contest the same or claim that those courts are inconvenient forums, and (iii) agrees that those courts shall have exclusive jurisdiction and venue. 7.3. Claims Above $150,000 — Arbitration.  Except as otherwise provided in ¶ 7.2 above or ¶ 7.3.4 below, any controversy or claim arising out of or relating to these T&Cs or the contract between the Parties, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) under the AAA’s then existing Commercial Arbitration Rules, and judgment on the arbitrator’s award may be entered in any court having jurisdiction.7.3.1. AAA Rules.  The Expedited Procedures of the AAA shall be used when the Parties’ claims and counterclaims are each less than $500,000 (even if the aggregate equals or exceeds that dollar threshold).  The procedures for Large, Complex Commercial Disputes shall be used if either Party’s claim or counterclaim is at least $500,000.  In all cases, the Standard Fee Schedule of the AAA shall be used, and there shall be just one arbitrator.7.3.2. Venue of Proceeding.  The arbitration shall be in the Minneapolis-St. Paul Standard Metropolitan Statistical Area in the AAA offices or another location therein selected by the arbitrator (including his or her own offices).7.3.3. Arbitrator’s Powers.  The arbitrator has all powers in the AAA rules, including the ability to grant injunctive relief.  All jurisdiction issues shall be decided solely by the arbitrator (not a court).  However, the arbitrator has no jurisdiction to hear class actions; proceedings shall be limited to the Buyer, Seller, and any other party they mutually agree to join in the proceeding with that party’s consent to arbitrate hereunder. Decisions must be reasoned.7.3.4. Indispensable Parties.   Upon motion by either Party, the arbitrator shall dismiss the proceeding without prejudice and costs when (i) the arbitrator cannot accord complete relief between the Buyer and Seller unless another party participates in the proceeding, and (ii) that person refuses to participate in the arbitration proceeding hereunder.  If the arbitration gets dismissed, suit may be commenced in accordance with ¶ 7.2.1 and ¶ 7.2.2 above. 7.4. Statute of Limitation.  Every action relating to Products governed by these T&Cs must be commenced within one year from the date of the sale.  Any action commenced after that time shall be barred.

  1. Miscellaneous

8.1. Force Majeure.  Each Party’s duty to perform hereunder is suspended for the length of time of any (i) Act of God, fire, or explosion; (ii) war, other conflict, or terrorism; (iii) geopolitical disturbance in the Middle East or other regions; (iv) strike, lockout, or other labor trouble; (v) injunction or other legal prohibition; (vi) inability to obtain necessary raw materials or transportation; and/or (vii) other circumstances beyond its control.  However, the Buyer must still pay for Products received, Products already in transit, and custom Products of Seller for which Seller already started production.8.2. Allocation.  Whenever Seller in good faith is unable to produce enough Product to fill all its orders, Seller may allocate Product to itself first, and thereafter among its customers in a fair and reasonable manner.  In such an event, Seller shall not be liable to Buyer for its failure to fulfill Buyer’s full order (or for any other matter related to the allocation).8.3. Technical Advice.  Technical advice from Seller shall not be deemed to change any of the above provisions.  Seller shall have no liability for any technical advice provided to Buyer — and all technical advice from Seller is given and accepted at Buyer’s risk — unless it is made in writing and signed by Seller’s authorized representative [¶ 9.4].  Buyer understands and agrees to the preceding and hereby waives all rights to assert anything to the contrary.8.4. Product Hazards.  Seller will provide Buyer with Safety Data Sheets (“SDS”) for those Products as required by law.  BUYER SHALL USE AND STORE PRODUCT IN A MANNER THAT PROTECTS ITS EMPLOYEES AND OTHERS.  BUYER SHALL WARN ITS EMPLOYEES AND OTHERS OF THE HAZARDS FROM PRODUCT EXPOSURE AND all PRECAUTIONS THEY SHOULD TAKE.  If Buyer fails to store and use the Product in accordance with the SDS, or fails to warn an employee or other person of matters contained in the SDS, then Buyer shall indemnify and hold Seller harmless from any and all losses and damages of any kind arising out of that failure (including attorney fees).8.5. Buyer Obligations.  Before ordering the Products, Buyer shall test the Product for its applications to assure it meets Buyer’s needs and can be used safely and as desired by Buyer.  Following delivery, Buyer assumes all risks and liabilities of any kind from the transportation, handling, storage, use, and disposal of the Products (whether used alone, in combination with other substances, or in any process).  Except as prohibited by law, after Buyer accepts the Products (i) Seller shall not be liable for any claims involving Buyer and the Products, and (ii) Buyer must indemnify and hold Seller harmless from any and all losses and damages of any kind arising out of such claims (including attorney fees).8.6. Seller Containers.  Whenever Seller provides any intermediate bulk container or other container to Buyer for its use, that container remains Seller’s property, must be properly cared for by Buyer while in its possession, and must be promptly returned to Seller upon its demand in the same condition as provided (reasonable wear and tear excepted).  Buyer must indemnify Seller for any damages, and if the container is lost or not returned, for the cost of a replacement.8.7. Economic Hardship.  Either Party may require an existing price to be renegotiated (i) if it can show the current price will result in it buying or selling at a loss, (ii) based on events in the Middle East that materially change the benefit of the Parties’ bargain, or (iii) for any other excuse by failure of presupposed conditions described in UCC § 2-615.8.8. Right to Revise.  Seller may revise these T&Cs at any time and in any way.  However, no revision may be applied retroactively, and the existing T&Cs shall remain in effect for offers already accepted and for shipments in transit.

  1. Rules of Construction

9.1. Waivers.  A waiver by Seller of any provision of these T&Cs shall be effective only if, and only if, it is in writing and signed by Seller’s authorized representative [¶ 9.4].  No other alleged waiver by Seller shall be of any force or effect.9.2. Assignment.  Seller may assign its payment rights.  Neither Party may assign its rights or delegate its duties hereunder without the other Party’s written consent, and any such action without that consent shall be void, except no such consent shall be required in the event of merger or sale of the assigning Party’s entire business for the relevant Products.9.3. Binding Effect.  These T&Cs are binding upon and inure to the benefit of each of the Parties, their permitted assigns, an acquirer of that Party’s business for these Products, and their affiliates and legal successors in interest.9.4. Seller’s Authorized Representatives.  In these T&Cs, a person is an authorized representative of Seller only if he or she serves Seller as (i) chairman, CEO, president, or vice president; (ii) chief manager or general manager; or (iii) any other employee of Seller designed as such by name in a writing that has been signed by any of the preceding.  Sales Managers and Business Managers may bind the Seller to sales offers and sales contracts (but nothing else).9.5. Definitions.  Whenever any of the following terms is used in these T&Cs, it shall have the meaning given to it below:9.5.1. “Affiliate” is a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.9.5.2. “Signed” includes using any symbol executed or adopted with the intent to adopt or accept a writing.9.5.3. “UCC” refers the Uniform Commercial Code then in effect in Minnesota (including re-numbered sections).9.5.4. “Writing” can be on paper, by email, or by any other communication that can be reproduced in tangible form. 9.6. Governing Law.  These T&Cs shall be governed by Minnesota law — except its choice of law rules — and not by the United Nations Convention on Contracts for the International Sale of Goods.  Minnesota law applies to both court and arbitration proceedings.  Minnesota law applies whether the proceeding is held within Minnesota or elsewhere.

Terms and Conditions for Vendors

HK Research Corporation (“Buyer”)

1. Applicability

1.1. Scope These Terms & Conditions of Purchase (these T&Cs) apply to all Buyer purchase orders, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications and/or other documents incorporated by reference therein (collectively an Order).
(a) Acceptance.  An Order is accepted by Seller on the earlier of (i) Seller’s shipment of any goods or rendering any services described in the Order, or (ii) the expiration of 15 days following Buyer’s issuance of the Order (unless Seller provides a written notice of non-acceptance to Buyer within that time).  Acceptance by Buyer of any offer from Seller is expressly limited to the terms and conditions of the Order.
(b) Other Terms.  Buyer hereby objects to and shall not be bound by any additional, different, or conflicting term contained in any oral or written communication between the parties of any kind, including any Seller shipping paper, confirmation, form, letter, paper, email, or electronic communication (Other Term).  Every such Other Term shall be of no force or effect, except to the extent otherwise provided in ¶ 1.3 below.
1.2. 
Parties As used in these T&Cs:
(a) “Affiliate is a corporation, partnership, or other business entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
(b) “Buyer means the above-named corporation and all of its Affiliates — including, without limitation, IP Corporation, Interplastic Corporation, North American Composites Company (NAC), and Molding Products LLC.
(c) “Seller is the addressee or intended recipient of Buyer’s purchase order or other Order (and its Affiliates).
1.3. 
Modification by Written Contract.  These T&Cs may be modified only by a writing that is signed by Buyer’s authorized representative [¶ 8.6] and by Seller (“Written Contract”).  When a conflict arises between these T&Cs and a Written Contract, the provisions of the Written Contract always control.

2. Termination

2.1. Termination for Cause Buyer may, by written notice to Seller, terminate the Order, or any part thereof, in the event that Seller (i) fails to make timely, complete, and conforming delivery of goods and services; (ii) breaches any of its representations or warranties in the Order; (iii) breaches any of the terms and conditions of the Order; (iv) ceases its business operations; or (v) becomes insolvent or files for bankruptcy protection.
(a) No Payment Obligation.  Whenever Buyer terminates for cause, Buyer has no payment obligations to Seller of any kind whatsoever.
(b) Adverse Court Determination.  If a court determines that Buyer’s termination for cause was unjustified, then (i) such termination shall be considered to be a termination for convenience pursuant to ¶ 2.2 below, and (ii) Seller shall have all rights under that provision (but no other rights or claims for damages).
2.2. 
Termination for Convenience Buyer may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for Buyer’s convenience.  Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order.  If Buyer terminates for convenience, Buyer shall pay Seller for goods and services accepted as of the date of termination, and, subject to ¶ 5.4, for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination.  Buyer shall have no responsibility for work performed after Seller’s receipt of notice of termination.

3. Price and Terms

3.1. Price.  The Price shall be the amount stated in the Order.  If there is no amount in the Order, then the price shall be Seller’s lowest price for similarly situated customers, unless the parties agree upon a different price.

3.2. Freight Charges Except as expressly provided in the Order (i) packing, shipping, unloading, assembling and installation are included in the price in the Order; and (ii) Buyer shall not be charged any additional amounts for such services.  Seller must prepay all shipments with freight charges.  Collect shipments will not be accepted.

3.3. Payments Unless otherwise specified in the Order, payment terms shall be Net 60.  However, except as expressly stated in the Order, payment shall not be due (i) before final acceptance by Buyer, and (ii) until Buyer receives a correct and proper invoice for the amount due (which accurately reflects the terms in the Order).
(a) Contrary Terms.  Payment or other terms identified on the Seller’s invoice which are contrary to those of the Order shall have no force and effect unless acted upon or approved in writing by Buyer.
(b) Discounts If cash discounts are offered and identified, such discount periods will be computed from the date of delivery of the goods or services ordered; or the date Buyer receives a correct and proper invoice, whichever is later.
(c) Late Fees and Penalties.  Buyer will use reasonable commercial efforts to pay invoices within terms.  However, Buyer is not obligated to pay late fees or penalties for invoices paid outside the Order’s terms.
3.4. 
Setoff.  Buyer has the right to reduce and set off against amounts payable under the Order any indebtedness or other claim which Buyer may have against Seller, regardless of how or when it arose.
3.5. 
U.S. Dollars.  Unless the Order expressly provides to the contrary, all quotes and amounts paid under the Order shall be in U. S.  Dollars, and Seller bears the risk of fluctuation in foreign exchange rate.

4. Deliveries

4.1. Packing Buyer’s purchase order number and specific delivery location must appear on the outside of each package and on all packing slips, invoices, and allied papers.  A packing slip must be included with each shipment.  Except as expressly provided in the Order, Seller shall pack, mark and prepare all shipments to meet the carrier’s requirements, at Seller’s expense.

4.2. Timely Delivery.  Time is of the essence in fulfillment of the Order.  Shipment and delivery shall be made in accordance with the Order; provided, that if not addressed in the Order, delivery shall be made within ten (10) days of Buyer’s issuance of the Order. Buyer may, at its option, and without limitation of any of its other rights, cancel any unfilled part of the Order if complete, conforming delivery is not made within the times specified.  Buyer is not required to accept partial or incomplete delivery.  Acceptance of any part of the Order shall not bind the Buyer to accept any future shipments.

4.3. Inspection Buyer shall have the right to inspect and test all goods and/or services delivered under the Order.  Neither receipt nor payment for goods and/or services shall constitute acceptance.  Buyer may reject any or all items that are nonconforming, as determined by Buyer’s sole reasonable judgment.  Buyer’s failure to inspect shall not relieve Seller of any of its responsibilities. Material shipped in quantities in excess of Buyer’s stated requirements may be returned at Seller’s expense.  If goods are rejected, they will be held at Seller’s risk and expense and Seller shall bear the risk of loss or damage to those goods until they are received by Seller.

4.4. Title and Risk of Loss Until the goods purchased pursuant to the Order they are actually received by Buyer, Seller shall retain title to those goods, bear the risk of loss, and be solely responsible for damage to the goods.

5. Warranties and Liability

5.1. Seller Warranties Seller warrants that all material, work product, and merchandise supplied under the Order (i) shall strictly conform to all specifications, drawings, samples, or other descriptions furnished to and approved by Buyer; (ii) shall be fit and serviceable for the purpose intended, as agreed to by Buyer and Seller; (iii) shall be of good quality and free from defects in materials and workmanship; (iv) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer; and (v) shall not infringe any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party.
(a) Good Title.  Seller warrants that (i) Buyer shall have good and marketable title to all goods and all components thereof purchased by Buyer pursuant to the Order; (ii) upon delivery, the goods shall be free and clear of all liens and encumbrances of any kind, including purchase money security interests; and (iii) no licenses are required for Buyer to use such goods.
(b) Services.  With respect to services, Seller warrants that all services shall be provided in a professional and workmanlike manner, with a degree of skill and care consistent with current, good and sound professional procedures.
(c) Effect of Receipt and Payment.  Neither receipt of material, work, product, or merchandise — nor payment therefor by the Buyer — shall ever be deemed to constitute a waiver of the above provisions or preclude Buyer from enforcing the above provisions as written.
(d) Return Rights.  In the event that a breach of warranty occurs, Buyer may, in its sole discretion, and without waiving any of its other rights, return for credit or require prompt correction or replacement of the nonconforming goods or services.

5.2. Intellectual Property Indemnity.  Seller shall indemnify, defend and hold Buyer harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any actual or claimed infringement of any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party, with respect to the goods or services provided under the Order.
5.3. 
Buyer’s Damages.  Without limiting Buyer’s rights and remedies at law or in equity, Buyer reserves the right to charge Seller for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with Buyer’s purchase of substitute goods, incidental damages and consequential damages resulting from Seller’s failure or breach.

5.4. Limitation of Buyer’s Liability Except to the extent expressly provided in these T&Cs or a Written Contract (i) Buyer shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits, any incidental damages, or any consequential damages; (ii) under no circumstances shall Buyer’s liability for any claim arising directly or indirectly under or in connection with the Order exceed the cost of the goods or services giving rise to the claim; and (iii). Buyer is not liable for penalties of any kind.

6. Dispute Resolution

6.1. In General.  These dispute resolution provisions may be modified by the parties in writing.  Nothing herein prevents the parties from utilizing mediation if they so agree.  As used below, the amount of a party’s requested claim or counterclaim excludes (i) interest; (ii) the monetary value of injunctive relief sought; (iii) any arbitration and arbitrator fees; (iv) all costs, disbursements, and attorney fees; and (v) damages not recoverable hereunder.

6.2. Claims of $150,000 or Less — Court.   Any claim arising out of or relating to these T&Cs or the contract between the parties, or the breach thereof, shall be resolved by a court under the provisions below whenever the parties’ claims and counterclaims are each $150,000 or less (even if the aggregate exceeds that dollar threshold).
(a) Exclusive Jurisdiction & Venue.  The court proceeding must be commenced in a federal or state district court in the Minneapolis-St. Paul Standard Metropolitan Statistical Area, and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the parties.
(b) Seller Consent to Jurisdiction & Venue.  Seller hereby (i) consents to the jurisdiction and venue of the above courts, (ii) waives any right to contest the same or claim that those courts are inconvenient forums, and (iii) agrees that those courts shall have exclusive jurisdiction and venue.
6.3. 
Claims Above $150,000 — Arbitration.  Except as otherwise stated in ¶ 6.2 above or ¶ 6.3(d) or ¶ 6.3(e) below, any claim arising out of or relating to these T&Cs or the contract between the parties, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association (AAA) under the AAA’s then existing Commercial Arbitration Rules.
(a) AAA Rules.  The Expedited Procedures of the AAA shall be used when the parties’ claims and counterclaims are each less than $500,000 (even if the aggregate equals or exceeds that dollar threshold).  The procedures for Large, Complex Commercial Disputes shall be used if either party’s claim or counterclaim is at least $500,000.  There shall be just one arbitrator.
(b) Venue of Proceeding.  The arbitration shall be in the Minneapolis-St. Paul Standard Metropolitan Area in the AAA offices or another location therein selected by the arbitrator (including his or her own offices).
(c) Arbitrator’s Powers.  The arbitrator shall have all of the powers in the AAA rules, including the ability to grant injunctive relief.  All jurisdiction issues shall be decided solely by the arbitrator (not a court).
(d) Indispensable Parties.   Upon motion by either party, the arbitrator shall dismiss the proceeding without prejudice and costs when (i) the arbitrator cannot accord complete relief between the Buyer and Seller unless another party participates in the proceeding, and (ii) that person refuses to participate in the arbitration proceeding hereunder.  If the arbitration gets dismissed, suit may be commenced in accordance with ¶ 6.2 above notwithstanding any dollar limit therein.
(e) Injunctive Relief.  Nothing above precludes either party from seeking injunctive relief from a court of law pursuant to ¶ 6.2 above when (i) no money damages are sought, or (ii) the amount of money damages also being sought does not exceed the dollar threshold therein.  For all other situations, see ¶ 6.3(c) above.
6.4. 
Loser Pays.  Plaintiff is the “prevailing party” — and defendant is the “losing party” — whenever plaintiff is awarded (i) at least 67% of plaintiff’s monetary demand, and/or (ii) a substantial portion of plaintiff’s request for injunctive relief.  If plaintiff is awarded neither of the preceding, then the “prevailing party” is defendant and the “losing party” is plaintiff.
(a) Costs & Disbursements.  In all cases, the losing party must pay all of the prevailing party’s costs and disbursements including, without limitation, fees and expenses of expert witnesses.  However, neither Party may recover for time spent by its employees or any of their travel costs, hotel charges, meals, or related items.
(b) Arbitration Expenses.  In arbitration proceedings, the losing party must pay directly or provide reimbursement for (i) all AAA filing fees and other AAA charges, and (ii) all of the arbitrator’s fees and expenses.
(c) Attorney Fees.  In all cases, the losing party shall pay the prevailing party’s reasonable attorney fees and their expenses.  A contingency fee up to one-third (1/3) shall be deemed to be reasonable.
6.5. 
Interest.  Any claim by Seller against Buyer for a liquidated sum, or by Buyer against Seller for a liquidated sum, shall accrue interest at the rate of eighteen percent (18%), or if less, at the maximum legal rate of interest.

6.6. Collection Costs.  Until the award is paid in full, interest shall accrue on the unpaid amount at the rate in ¶ 6.5 above.  In the event the full payment is not made within 30 days of the award, the prevailing party shall be entitled to recover all of its reasonable collection coasts, including additional attorney fees relating to collection of those unpaid amounts.

7. Miscellaneous

7.1. Conduct of Personnel.  While at any Buyer location, Seller’s personnel, agents, and subcontractors shall comply with all of the reasonable requests, standard rules, and regulations of Buyer communicated to Seller regarding personal and professional conduct, including without limitation any security or privacy requirements, and shall otherwise conduct themselves in a businesslike manner.

7.2. Use of Buyer’s Name Seller agrees not to use (i) Buyer’s name, (ii) the name of any employee, student or agent of Buyer; or (iii) any trademark, service mark or trade name owned or controlled by Buyer, in any sales, promotional, advertising or other publication, without the express prior written permission of Buyer.  In no event shall Seller or its employees, agents or subcontractors represent themselves as employees or agents of Buyer.

7.3. Compliance with Laws.  Seller represents and warrants that, in the production and sale of goods to be delivered pursuant hereto, and in the provision of services hereunder, Seller has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (i) all such laws and regulations pertaining to health, safety and environmental standards; (ii) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such goods; and (iii) all such laws and regulations which pertain to affirmative action, nondiscrimination, and/or equal opportunity, including without limitation, the requirements of the Fair Labor Standards Act of 1938, as amended, and the rules and regulations of the Secretary of Labor issued pursuant to Executive Order Number 11246 of September 24, 1965.

7.4. Confidentiality Seller shall preserve in strict confidence all confidential, sensitive or proprietary information of Buyer received from Buyer (“Confidential Information”), whether or not marked “Proprietary” or “Confidential,” and whether oral or written, using the same degree of care as it takes to preserve and safeguard its own confidential or proprietary information (but in no event less than a reasonable degree of care.  Confidential Information shall not include information that Seller can demonstrate by written evidence was publicly available at the time of disclosure or was independently developed by Seller without reference to Confidential Information.  Seller will not (i) disclose or cause to be disclosed at any time any Confidential Information obtained from Buyer, or (ii) use or cause to be used any of such Confidential Information for any purpose, except as required in the performance of the services required by the Order.  Seller represents, warrants and covenants that it shall maintain physical, electronic and procedural safeguards designed to (1) insure the security, integrity and confidentiality of all Confidential Information, (2) protect against any anticipated threats or hazards to the security, integrity or confidentiality of Confidential Information, and (3) protect against unauthorized access to or use or disclosure of Confidential Information.

7.5. Proprietary Rights.  Seller agrees that all work created by Seller solely or in collaboration with others in the course of performing services under this Agreement or designing or developing materials to be delivered, including all intermediate and partial versions (“Work Product”) shall automatically be the sole property of Buyer upon their creation or (in the case of copyrightable works) fixation in a tangible medium of expression, and Buyer shall own all rights, including all proprietary and intellectual property rights, title and interest.  Seller hereby assigns to Buyer all of its right, title and interest in and to all of the Work Product and all copies of any of the foregoing, including, without limitation, all copyright and other proprietary rights thereto throughout the world (and all renewals and extensions).

8. Rules of Construction

8.1. Entire Agreement The Order represents the entire agreement between Seller and Buyer with respect to the goods and services described in the Order.
8.2. 
No Assignment Seller may not assign, transfer or subcontract any part of the Order without the prior written consent of Buyer, and any assignment in violation of this provision shall be null and void.

8.3. Severability.  If any provision of the Order is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.

8.4. 
Waiver No waiver by Buyer of any provision of the Order or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach, nor shall any such waiver constitute a continuing waiver.  Delay or failure of Buyer to insist on strict performance of any provision of the Order or to exercise any rights or remedies hereunder shall not be deemed a waiver.

8.5. Meaning of Certain Terms.  Unless the context clearly requires otherwise, all words used in these T&Cs in the singular include the plural, and all words used in the plural include the singular. Unless the context clearly requires otherwise, whenever the following terms are used in these T&Cs, they mean the following:
(a) “Include” and its derivatives are used in these T&Cs in an illustrative sense, not a limiting one (and thus has the same meaning as the phrase “including but not limited to”).(b) “Signed” means (i) an original signature; (ii) a fax copy with a manual signature; (iii) any signature affixed to a writing that is then scanned and sent by email or other electronic communication; and/or (iii) any signature satisfying the Electronic Signatures in Global and National Commerce Act (ESIGNS), 15 U.S.C. Chap. 96, or any state law that is applicable to that instrument.

(c) “Writing” includes (i) traditional paper documents, (ii) information that is inscribed on a tangible medium, and (iii) information that is stored in an electronic or other medium and is retrievable in a perceivable form (including, without limitation, an email).

8.6. Buyer’s Authorized Representative The only Buyer representatives with authority to modify these T&Cs are (i) its Vice President & General Counsel, and (ii) its other executive officers.  No such authority is held by sales personnel, purchasing officials, or other employees (and a purported medication by them has no force or effect).

8.7. Choice of Law.  All matters arising under or related to the Order and these T&Cs shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflicts of law rules.  This shall apply to all court proceedings [¶ 6.2], all arbitrations [¶ 6.3], and all other circumstances.

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