These Terms & Conditions (“Terms”) set forth the entire understanding between Advanced Extrusion, Inc., a Minnesota corporation (together with its affiliates “Advanced Extrusion”) and purchaser (“Purchaser”) with respect to the sale and purchase of any services or products sold by Advanced Extrusion to Purchaser, including polyester roll stock products (“Products”).
- AGREEMENT. Advanced Extrusion’s acceptance of any order(s) from Purchaser is expressly conditioned on Purchaser’s unqualified acceptance of these Terms, and Purchaser agrees that any additional or conflicting terms contained in Purchaser’s purchase order or other documents shall be superseded by these Terms. Purchaser’s acceptance of delivery of, payment for, or use of the Products constitutes Purchaser’s consent and agreement to these Terms.
- PRICES. Prices, whether they appear on Advanced Extrusion’s website, on a price list, or in any other form or medium, are effective only for orders shipped on the date that such prices first appear. Advanced Extrusion may change prices at any time without notice. Prices in quotations are effective for the specific time period stated in the quotation or, if no time period is stated, 30 days. Unless otherwise agreed, prices do not include freight, warehousing, applicable excise, value-added, sales, use, import/export tariffs, or other taxes, packaging for export or to comply with mutually agreed upon Purchaser instructions, or insurance. All of the foregoing will be billed as separate items and are not subject to discounts. Quoted prices that include freight or insurance costs are estimates and that such rates may differ at the time of shipment. Purchaser shall be responsible for the actual price at the time of shipment. Typographical and other ministerial errors included in any quotation or other document are subject to correction.
- PAYMENT TERMS. Purchaser shall remit payment to Advanced Extrusion on the terms stated on the invoice for each shipment of Products, or if none are stated, within 30 days of the date of such invoice. If Purchaser, in good faith, believes that any invoice is incorrect, Purchaser shall notify Advanced Extrusion within 7 days after receipt of the invoice or Purchaser forever waives the right to dispute the accuracy of the invoice. Payments not made when due shall accrue interest at 1.5% per month or, if lower, the maximum rate permitted by law. Purchaser shall be responsible for and pay all foreign, federal, state or local sales use, value-added, excise or other taxes or duties applicable to the sale of the Products as well as all shipping charges as Advanced Extrusion may establish from time to time. Purchaser shall accept and pay for a shipment that is plus or minus up to 10% of the order quantity requested by Purchaser. Purchaser will be invoiced for the quantity that is actually shipped.
- DELIVERY, TITLE, AND RISK OF LOSS. All timeframes provide by Advanced Extrusion, whether verbally or in writing, are good faith estimates of the expected delivery date for the Products. Delivery will be EXW (Incoterms 2010) Advanced Extrusion’s warehouse, unless Advanced Extrusion has specified otherwise in writing. If Purchaser has not provided Advanced Extrusion with shipping instructions, Purchaser hereby authorizes Advanced Extrusion to make shipping arrangements necessary to deliver the Products. Risk of loss or damage to the Products shall pass to Purchaser upon delivery of the Products to the carrier for shipment. Title to the Products shall pass to Purchaser upon payment to Advanced Extrusion in full. Advanced Extrusion shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. No delay in the delivery of the Products shall relieve Purchaser from its obligation to accept and pay for Products delivered.
- TIME. All orders are subject to credit approval, rejection or modification due to the availability of raw materials, and minimum order quantities. No lead times are guaranteed unless agreed to in writing by Advanced Extrusion. Advanced Extrusion reserves the right to modify or discontinue any Product and any specifications applicable to such Product at any time without notice to Purchaser.
- LIMITED WARRANTY. EXCEPT AS SET FORTH IN SECTION 7 BELOW, ADVANCED EXTRUSION WARRANTS TO PURCHASER, AND TO PURCHASER ALONE, THAT THE PRODUCTS WILL CONFORM TO THE SPECIFICATIONS APPLICABLE TO SUCH PRODUCT AT THE TIME OF DELIVERY TO THE CARRIER (THE “LIMITED WARRANTY”).
- EXCLUSION OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY, ADVANCED EXTRUSION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. PURCHASER SHALL NOTIFY ADVANCED EXTRUSION OF ANY BREACH OF THE LIMITED WARRANTY WITHIN 15 DAYS OF DELIVERY OF SUCH PRODUCTS. PURCHASER’S SOLE REMEDY WITH RESPECT TO A BREACH OF THE LIMITED WARRANTY SHALL BE TO HAVE ADVANCED EXTRUSION REPLACE OR REFUND (IN ADVANCED EXTRUSION’S SOLE DISCRETION) SUCH DEFECTIVE PRODUCTS WITHIN A REASONABLE PERIOD OF TIME. THE LIMITED WARRANTY DOES NOT COVER AND IS VOID WITH RESPECT TO PRODUCTS THAT HAVE BEEN SUBJECTED TO IMPROPER HANDLING OR STORAGE, NEGLECT, ACCIDENT, DAMAGE DURING SHIPMENT AND OTHER ACTIONS OUTSIDE OF ADVANCED EXTRUSION’S CONTROL. WITHOUT LIMITING THE FOREGOING EXCLUSIONS AND LIMITATIONS, FOLLOWING PRODUCTION, PRODUCTS WILL BE SUBJECT TO FREE VOLUME RELAXATION, RESULTING IN POTENTIAL CRACKING OR BRITTLENESS AFTER A PERIOD OF APPROXIMATELY 9 MONTHS. PURCHASER ACKNOWLEDGES THAT FREE VOLUME RELAXATION IS AN INHERENT CHARACTERISTIC OF THE PRODUCTS AND PURCHASER IS RESPONSIBLKE FOR ALL CONSEQUENCES OF THIS PROCESS.
- PURCHASER CLAIMS. All claims by Purchaser with respect to the quantity or quality of the Products shall be made in writing to Advanced Extrusion within 15 days after Purchase’s receipt of the shipment. Failure to notify Advanced Extrusion within such period shall constitute waiver by Purchaser of such claim and shall constitute irrevocable acceptance of the Products and agreement by Purchaser that the Products fully comply with the specifications with respect to such Products. Products fully comply with the specifications with respect to such Products.
- FORCE MAJEURE. Advanced Extrusion shall not be liable for any delays in delivery, or for non-delivery or nonperformance, in whole or in part, caused by the occurrence of any force majeure event. For purposes of these Terms, a force majeure shall mean the occurrence of any event beyond the control of Advanced Extrusion or its suppliers, including acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmission or product transportation, materials shortages or delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, pandemic or epidemic, other natural disasters and catastrophes, and compliance by a party with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. The existence of a force majeure shall extend the time of performance by the time or times measured by any such cause or causes of delay.
- DEFAULT. If Purchaser (a) cancels an order after Advanced Extrusion has commenced performance, (b) defaults under these Terms or any other agreement between Advanced Extrusion and Purchaser, or (c) becomes insolvent, files or has filed against it a bankruptcy, insolvency, or similar petition or action, then Advanced Extrusion may, without limiting any other rights or remedies under these Terms or at law or equity available to it: (i) cancel or terminate any order, or the portion thereof in default; (ii) attempt to resell any of the Products which have not been shipped and which Purchaser has wrongfully failed or refused to accept, and recover from Purchaser the difference between the Purchaser’s purchase price and the price obtained on resale less commission and other expenses incurred by Advanced Extrusion in connection with such resale; (iii) suspend further shipments until Purchaser reestablishes credit reasonably satisfactory to Advanced Extrusion; or (iv) cancel the unshipped or unperformed portion of any order and invoice Purchaser for incurred costs and reasonable profit without any liability on the part of Advanced Extrusion for failure to ship or provide the Products. If Advanced Extrusion is required to take any legal action to recover money due from Purchaser or to enforce any provision of these Terms, Purchaser shall be liable to and reimburse Advanced Extrusion for all of Advanced Extrusion’s costs and expenses in connection therewith, including Advanced Extrusion’s reasonable attorney’s fees and other costs and expenses of litigation.
- LIMITATIONS ON DAMAGES. ADVANCED EXTRUSION SHALL NOT BE LIABLE TO PURCHASER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LABOR COSTS) ARISING FROM THE MANUFACTURE, SALE, PROVISION, OR USE OF THE PRODUCTS, BREACH OF THESE TERMS, OR ANY OTHER CAUSE WHATSOEVER, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER THEORY OF LIABILITY, AND REGARDLESS OF WHETHER PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE OR IF SUCH LOSS OR DAMAGE WAS FORESEEABLE BY ADVANCED EXTRUSION AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PURSUANT TO THE LIMITED WARRANTY. IN ANY ACTION, PURCHASER SHALL BE LIMITED TO DIRECT DAMAGES, NOT TO EXCEED THE AMOUNT PAID TO ADVANCED EXTRUSION FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE CLAIM. PURCHASER ACKNOWLEDGES AND AGREES THAT ADVANCED EXTRUSION HAS RELIED ON THE FOREGOING LIMITATION AND PURCHASER ACKNOWLEDGES THAT THIS PROVISION WAS ESSENTIAL IN ESTABLISHING THE PRICES FOR THE PRODUCTS.
- INDEMNITY. Purchaser shall defend (with counsel acceptable to Advanced Extrusion), indemnify and hold Advanced Extrusion, its affiliates and its and their directors, officers, employees, shareholders, and agents harmless from and against any and all damages, losses, claims and expenses, including reasonable attorneys’ fees and other costs and expenses of litigation resulting from Purchaser’s breach of these Terms or Purchaser’s or its agents’ negligent acts or omissions with respect to the Products.
- MISCELLANEOUS. No amendment to these Terms will be effective unless it is in writing and signed by the parties. No waiver of satisfaction of a condition or nonperformance of an obligation hereunder will be effective unless it is in writing and signed by the party granting the waiver, and no waiver will constitute a waiver or satisfaction of any other condition or nonperformance of any other obligation. Notwithstanding the completion of an order or the cessation of commercial relations between the parties, these Terms shall survive indefinitely. These Terms shall be governed by the laws of the State of Minnesota. With respect to any dispute or claim arising hereunder, Purchaser agrees and consents to jurisdiction of and exclusive venue in any state or Federal court located in Minneapolis, MN.