The provisions set forth below, together with any special terms and conditions set forth in any written sales order or quotation from Advanced Extrusion , Inc., a Minnesota corporation (“Advanced Extrusion”), are the terms and conditions upon which Advanced Extrusion will sell high quality polyester roll stock products (the “Products”), and are exclusive of any additional or contrary terms and conditions contained in any purchase order or other communication from the undersigned customer (“Customer”), or any third party. Any inconsistency or conflict between the provisions of these terms and conditions and the terms set forth in any purchase order submitted by Customer, in any invoice generated by Advanced Extrusion, or in any other document or agreement between Customer and Advanced Extrusion shall be resolved in favor of the provisions of these terms and conditions.
1. AGREEMENT. If Customer has not otherwise agreed to these terms and conditions, Customer’s acceptance of delivery of, payment for, or use of the Products will constitute Customer’s agreement to these terms.
2. EXCLUSION OF WARRANTIES. ADVANCED EXTRUSION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADVANCED EXTRUSON’S POLYESTER ROLL STOCK HAS A SHELF LIFE EXPECTANCY OF NINE MONTHS. DUE TO A PROCESS CALLED FREE VOLUME RELAXATION. MATERIAL OLDER THAN NINE MONTHS COULD EXPERIENCE CRACKING OR BRITTLENESS.
3. LIMITATIONS ON WARRANTY. ADVANCED EXTRUSION OR ITS SUBCONTRACTORS OR VENDORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE PRODUCTS AND/OR THESE TERMS AND CONDITIONS WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE AND IRRESPECTIVE OF WHETHER CPI HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. CUSTOMER HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE CUSTOMER OF AN ADEQUATE REMEDY. THE LIABILITY OF ADVANCED EXTRUSION, IF ANY, RELATING TO THE PRODUCTS AND/OR THESE TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER TO ADVANCED EXTRUSION HEREUNDER.
4. PRICES. All price quotations are offered for prompt acceptance, however (i) material costs are based on costs at the time of quotation and are subject to adjustment by Advanced Extrusion based upon the actual costs at the time each order is fulfilled and (ii) such quotations are subject to any change orders agreed upon by Advanced Extrusion and Customer. Typographical and other errors in stated quotations are subject to correction.
5. TAXES AND TRANSPORTATION CHARGES. Advanced Extrusion’s prices do not include any privilege, occupation, personal, property, value-added, sales, excise, use or other taxes, and Customer shall be liable for all such taxes, whether or not invoiced by Advanced Extrusion. Freight and insurance quotations are merely estimates based upon currently prevailing rates and, because Advanced Extrusion has no control over such quotations, any variations in the actual rates at the time of shipment shall be for the Customer’s account. Advanced Extrusion may add a charge for export packing to the price, and Advanced Extrusion reserves the right to impose an additional reasonable charge for packing and/or packaging to comply with Customer’s specifications or instructions.
6. PAYMENT TERMS. Unless otherwise specified by Advanced Extrusion in writing, payment in full for the Products is due thirty (30) days after shipment, without discount, reduction, setoff, abatement, counterclaim or recoupment for any reason, except that if at any time Advanced Extrusion determines that Customer’s financial condition or credit rating does not justify a sale on credit, Advanced Extrusion may require advance payment, a personal guarantee and/or may ship C.O.D. If Customer contends that any invoice is incorrect, Customer must so notify Advanced Extrusion within seven (7) days after receipt of the invoice. If Customer does not so notify Advanced Extrusion, Customer forever waives the right to further dispute the accuracy of the invoice. Any payment not made when due shall accrue a late charge of 1-1/2% per month or, if lower, the maximum rate permitted by law. Payment must be made at Advanced Extrusion’s offices in Rogers, Minnesota. Customer shall reimburse Advanced Extrusion for any expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent account or enforcing its rights hereunder.
7. DELIVERY AND RISK OF LOSS. Delivery will be F.O.B. Advanced Extrusion’s warehouse or other point of origin. Advanced Extrusion shall have no further responsibility for the Products, and all risk of damage to or loss or delay of the Products shall pass to Customer, upon their delivery to the F.O.B. point. Advanced Extrusion shall have the right to determine the method of shipment and routing of the Products, unless otherwise specified by Customer. Unless otherwise specified by Advanced Extrusion in writing, Customer shall pay such delivery charges as Advanced Extrusion may establish from time to time, which will be included on Customer’s invoice. Delivery in a manner directed by Customer shall be at Customer’s sole cost and expense. Advanced Extrusion shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delay in the delivery of the Products shall not relieve Customer from the obligation to accept and pay for such Products.
8. VARIATIONS. Customer agrees to accept a shipment quantity that is plus or minus a quantity equal to ten percent (10%) of the order quantity requested by Customer. Customer will be invoiced for the quantity that is actually shipped within these guidelines and Customer agrees to pay the invoice pursuant to the terms and conditions set forth in Paragraph 6 above.
9. FORCE MAJEURE. Fulfillment of this order is contingent upon the availability of materials. 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 contingency beyond the control of either Advanced Extrusion or suppliers of Advanced Extrusion including, but no limited to, one or more of the following causes: fires, destruction of plant; strike; lockout; dispute with workmen; epidemic; flood; accident; delay in transportation; war (whether declared or undeclared); insurrection; riot; blockage; embargo; raw materials shortages; acts, demands or requirements of the United States, or the country in which or through which delivery is to be made or any state or territory thereof, or of any governmental subdivision of any thereof; restraining orders for decrees of any court or judge; or any other cause whatsoever, whether similar or dissimilar to those herein before enumerated. The existence of any such cause or causes of delay shall extend the time of performance by the time or times measured by any such cause or causes of delay.
10. ACCEPTANCE OF ORDERS. Orders and offers to purchase received by or on behalf of Advanced Extrusion are subject to acceptance only at its office in Rogers, Minnesota. No Advanced Extrusion sales representative, or field agent has authority to accept orders or make contracts of sale on behalf of Advanced Extrusion.
11. CANCELLATION, COUNTERMAND AND RETURN OF GOODS. Orders accepted by Advanced Extrusion cannot be cancelled or countermanded, deferred or returned by Customer, except with the prior written consent from the Advanced Extrusion office in Rogers, Minnesota, and upon terms that will indemnify Advanced Extrusion against all losses resulting there from, including the profit on any part of the order that is cancelled.
12. SOLVENCY. Customer represents to Advanced Extrusion that Customer is able to pay its obligations in the ordinary course of business.
13. PURCHASE MONEY SECURITY INTEREST. In order to secure the payment of the purchase price of any and all Products, heretofore or hereafter purchased by Customer from Advanced Extrusion and each and every other debt, liability and obligation of every type and description that Customer may now or at any time hereafter owe to Advanced Extrusion, Customer hereby grants to Advanced Extrusion a security interest (the “Security Interest”) in and to any and all goods and inventory (including, without limitation, the Products), wherever located, heretofore or hereafter acquired by Customer from Advanced Extrusion, together with all additions and accessions thereto and substitutions and replacements for and products and proceeds of any of the foregoing property (including, without limitation, accounts receivable derived from the sale of such property) and all warehouse receipts, bills of lading and other documents of title now or hereafter covering such property (collectively, the “Collateral”). Customer authorizes Advanced Extrusion to file all of Customer’s financing statements and amendments to financing statements, and all terminations of the filings of other secured parties, all with respect to the Collateral, in such form and substance as Advanced Extrusion, in its sole discretion, may determine, including, without limitation, financing statements (or amendments to existing financing statements), in form and substance acceptable to Advanced Extrusion in its sole discretion, to perfect Advanced Extrusion’s Security Interest in and to the Collateral. Customer represents that the Collateral is used or being bought primarily for business purposes. Customer acknowledges that the Security Interest is a purchase money security interest.
14. LICENSES AND PERMITS. Customer shall be solely responsible for obtaining any and all export licenses or governmental permits necessary to export the Products from the United States of America. Customer shall be solely responsible for obtaining any and all import permits or other documents necessary for the importation of the Products into another country or political subdivision thereof.
15. ULTIMATE DESTINATION. The United States of America prohibits disposition of the Products to certain countries. It is the responsibility of Customer to inform Advanced Extrusion of the ultimate destination at the time a purchase order is placed with Advanced Extrusion.
16. NON-DISCLOSURE OF CONFIDENTIAL AND/OR PROPRIETARY TECHNICAL INFORMATION. Customer shall not disclose any technical/proprietary information furnished by Advanced Extrusion or acquired by Customer or by virtue of or as a result of the implementation of any purchase order to any person, firm or body or corporate authority and shall make all endeavors to ensure such technical/proprietary information is kept confidential. Title to such technical/proprietary information imparted/supplied by Advanced Extrusion to Customer shall at all times remain the absolute property of Advanced Extrusion.
17. INDEMNITY. Customer will defend, indemnify and hold harmless Advanced Extrusion from and against all damages, losses, claims and expenses, including attorneys’ fees, incurred by Advanced Extrusion as a result of (a) any breach by Customer of any of its obligations under these terms and conditions of sale, or (b) any personal injury or property damages resulting from the sale or use of the Products.
18. APPLICABLE LAW. These terms and conditions shall be deemed to have been made in the State of Minnesota and shall be governed by, construed and interpreted in accordance with the laws of the State of Minnesota. With respect to any dispute, controversy or claim arising out of or relating to these terms and conditions or the relationship between the parties, Advanced Extrusion and Customer agree and consent to jurisdiction of and exclusive venue in the United States District Court, District of Minnesota, Fourth Division or in the Minnesota State Court, Hennepin County, Fourth Judicial District.
19. ENTIRE AGREEMENT; AMENDMENT. These terms and conditions contain the entire agreement between Customer and Advanced Extrusion with respect to the subject matter hereof. These terms and conditions may not be modified, supplemented, or waived except in a writing signed by an authorized representative of Advanced Extrusion.
20. SEVERABILITY. Should any provision of these terms and conditions be illegal or unenforceable, the validity of the remaining terms and conditions shall not be affected thereby. If any provision of these terms and conditions is determined to be overbroad as written, that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.
21. ATTORNEYS’ FEES. If an action is instituted in any court involving these terms and conditions and/or any Products sold hereunder, and provided Advanced Extrusion shall prevail in the action, Customer agrees to pay all of Advanced Extrusion’s costs, expenses and fees in the action or appeal including, without limitation, reasonable attorneys’ fees.