1. ACCEPTANCE GOVERNING PROVISIONS AND CANCELLATION.
This writing constitutes an offer by AMERICAN HIGHWAY A SIMPLEX COMPANY (the “SELLER”) to sell the products described herein in accordance with these terms and conditions, and is expressly conditioned upon assent to these terms and conditions. No additional or contrary terms and conditions, or product or service specifications, contained in any purchase order or other communication from the purchaser hereunder (the “BUYER”), or any third party, shall be construed as, or constitute a waiver of these terms and conditions, or acceptance of any such additional terms, conditions or specifications and SELLER hereby objects to such additional or contrary terms, conditions or specifications unless otherwise expressly stated in writing by SELLER.
2. PRICING. A. Quotation & Quantities. Products and quantities quoted by SELLER are SELLER’s best interpretation and estimates of what is required for the project BUYER is asking SELLER to quote, and are offered in good faith based upon SELLER’s best efforts from original plans and documents unless otherwise noted. It is BUYER’s responsibility to determine the ultimate correctness of the products, quantities and installation for this project. Unless the original quote states otherwise, all quotations are valid only for a maximum of 30 days from the date of the quotation. SELLER’s pricing is not subject to reduction by any indexes, regulations or agreements. Changes in any terms of the quotation are valid only if in writing and agreed to by SELLER in writing. Prices quoted are based on the quantities estimated. It is BUYER’s responsibility to determine the ultimate correctness of the quantities quoted before accepting the quotation.
B. Purchase Orders. Materials listed in part of quotation will not be ordered without a signed and dated purchase order.
C. Changes. Requests for changes in quantities, products, specifications, pricing, delivery instructions, shipping methods or manners, or any other significant deviation from the terms in the original quotation must be done in writing and approved by both BUYER and SELLER. Whether SELLER will agree to the request for change and whether or not the requested change is to be considered a significant deviation from the original quotation will be determined by SELLER, at SELLER’s sole discretion. SELLER will process all written change orders within 10 days of receipt of BUYER’s written change order request. SELLER will not proceed with any requested change until BUYER has agreed to the change order in writing. Change orders that significantly alter the original agreement may, at SELLER’s sole discretion, void the original agreement and require the creation of a new quotation for review and acceptance by BUYER.
D. Cancellations. All cancellations must be done in writing and are not effective until received by SELLER. In the event BUYER communicates a cancellation but fail to confirm it in writing, SELLER reserves the right to confirm it in writing, at SELLER’s discretion, and invoke the terms of this paragraph. In the event of a cancellation, SELLER, at SELLER’s sole discretion, reserve the right to charge BUYER up to 50% of the agreed upon purchase price of materials processed against a sales order at the time BUYER elects to cancel the agreement providing the material is not special in nature and is suitable for resale. SELLER reserves the right, at SELLER’s sole discretion, to deny cancellation or alternatively to charge BUYER up to 100% of the agreed upon purchase price for all materials that are special in nature and/or not readily suitable for resale.
3. DEMURRAGE. SELLER will allow a maximum of two (2) hours unload time at the drop time and location agreed to in the original sales order or in any accepted, written change order. Unload time exceeding two (2) hours will be billed to BUYER at $60 per hour in increments of 1⁄4 hour. Freight rates do not include multiple unloading locations unless previously agreed upon. Additional reasonable costs, at SELLER’s discretion, will be charged to BUYER in the event that BUYER request, or direct, multiple unloading locations.
4. DELAY. SELLER shall not be liable for any loss or damage caused by delay in furnishing any products or services hereunder, or delay in any other performance provided for under these terms and conditions. Delay in the delivery of any products or the furnishing of any services hereunder shall not relieve BUYER from the obligation to accept and pay for the balance of any such products or services ordered hereunder.
5. ACCEPTANCE. In the event of any shortage, damage or discrepancy in or to a shipment of products, BUYER shall promptly report the same to SELLER and furnish written evidence or other documentation, as SELLER may deem appropriate. SELLER shall not be liable for any such shortage, damage, or discrepancy unless SELLER has received notice and substantiating evidence thereof from BUYER within five (5) days of arrival of the products at BUYER’s shipping address. If the substantiating evidence delivered by BUYER demonstrates to SELLER’s satisfaction that SELLER is responsible for such shortage, damage, or discrepancy, SELLER shall deliver additional or substitute products to BUYER in accordance with the delivery procedures set forth herein, provided that any damage or non-conforming products are returned to the FOB point, in good and merchantable condition, within thirty (30) days of the arrival of the products at BUYER’s shipping address. No product returns will be accepted without prior written authorization from the SELLER. In no event shall SELLER be liable for any additional costs, expenses or damages (including, but not limited to consequential damages) incurred by BUYER directly or indirectly as a result of any shortage, damage or discrepancy in or to a shipment.
6. PRICE AND PAYMENT. Unless otherwise expressly stated on the face hereof, all prices hereunder are subject to change without notice. The price of products on order but not shipped will be adjusted to SELLER’s price in effect at the date of shipment. All product prices hereunder are FOB SELLER’s warehouse or other facility, unless otherwise expressly stated in writing by SELLER. All payments hereunder shall be due NET 30 days, unless expressly stated in writing by SELLER, from the date which SELLER’s invoice is issued. If, and for as long as, any payment from BUYER to SELLER hereunder shall be overdue, interest at the lesser of (a) one and one-half percent (1-1/2%) per month, or (b) the highest rate of interest allowable under applicable law, shall automatically become due and payable on all balances outstanding as of the date such payment is overdue. In addition, SELLER shall not be obligated to ship any products ordered hereunder in the event any amount due and payable by BUYER to SELLER hereunder should be more than thirty (30) days overdue. The foregoing shall be in addition to, and not exclusive of, any other remedy SELLER may have, at law or in equity, in the event of any overdue payment hereunder.
7. TAXES AND OTHER CHARGES. BUYER shall be responsible for and shall pay, or reimburse SELLER for, all taxes (other than net income taxes), duties, import deposits, assessment and other governmental charges, however designated, which are now or hereafter imposed under or by any governmental authority or agency (a) by reason of the performance by SELLER of its obligation hereunder, (b) as a result of the payment of any amounts by BUYER to SELLER hereunder, or (c) based on the use of any product or service ordered hereunder. All payments to be made by BUYER to SELLER hereunder represent net amounts SELLER is entitled to receive and shall not be subject to any deductions for any reason whatsoever. In the event any such payments become subject to taxes, duties, assessments or fees of whatever kind or nature, such payments from BUYER shall be increased to such an extent to allow SELLER to receive the net amounts due hereunder.
8. CUSTOMER RETURNS. SELLER will not accept a customer return unless it is authorized in accordance with SELLER’s policy. Special Order and Nonstock items may not be returned without prior authorization. Return authorization can be obtained through a sales representative. SELLER will not be responsible for pick-up of return products at BUYER locations or jobsites unless BUYER has been given prior authorization. Items must not be returned via third party carrier without prior authorization. Items returned without prior authorization may be refused. For non-hazardous materials no bill of lading is required for returns. For hazardous materials proper shipping information must be available to the driver and proper Point Of Purchase shipping packaging must also be with the material. Products being returned must also be in unopened containers, undamaged, not leaking or defective, have complete original manufacturer labeling; must not be expired at the time of the return, and must be in saleable condition. All returns are subject to a restocking charge based on the original sales price.
9. WARRANTY. All products sold to BUYER hereunder are sold on an “As Is” basis, provided that BUYER may benefit from warranties extended by the manufacturer or producer of the products sold hereunder. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE OF ANY PRODUCTS ORDERED HEREUNDER.
10. LIMITATIONS OF LIABILITY. THE SOLE AND EXCLUSIVE REMEDIES FOR SELLER’S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE), OTHER THAN LIABILITY FOR WILLFUL MISCONDUCT, WITH RESPECT TO THE PRODUCTS AND SERVICES COVERED BY THESE TERMS
American Highway a Simplex Company Terms & Conditions Document Prepared: December 31, 2010 Effective: September 21, 2020
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AND CONDITIONS AND ALL OTHER PERFORMANCE BY SELLER UNDER OR PURSUANT TO THESE TERMS AND CONDITIONS SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 7 HEREOF. IN NO EVENT SHALL SELLER’S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, EVEN IF SELLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
11. CONFIDENTIAL INFORMATION. BUYER acknowledges and agrees that all information, other than information in published form or expressly designated by SELLER as non-confidential, which is directly or indirectly disclosed to BUYER by SELLER or embodied in the products provided hereunder, regardless of the form in which it is disclosed, relating in any way to SELLER’s markets, customer’s products, patents, inventions, procedures methods, designs, strategies, plans, assets, liabilities, costs, revenues, profits, organization, employees, agents, distributors or business in general (the “SELLER Information”) is confidential and proprietary to SELLER. BUYER agrees not to use any of such SELLER information for any purpose other than as permitted or required for performance by BUYER hereunder. BUYER further agrees not to disclose or provide any of such SELLER information to any third party, and to take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Nothing herein shall prevent BUYER from using, disclosing, or authorizing the disclosure of any information provided by SELLER to BUYER hereunder which is, or hereunder becomes, part of the public domain. At SELLER’s request, BUYER shall cooperate fully with SELLER in any and all legal actions taken by SELLER to protect its rights in the SELLER information.
12. IMPORT AND EXPORT. BUYER shall be responsible for obtaining all licenses and permits and for satisfying all formalities as may be required to import and deliver the products ordered hereunder to the shipping address requested by BUYER. BUYER shall supply SELLER on a timely basis with all information and documentation requested by SELLER in order to permit SELLER to export the products for use by BUYER hereunder. BUYER shall not dispose of any U.S. origin products, know-how, technical data, documentation or other products or materials furnished to it pursuant to this Agreement, to any party or in any manner which would constitute a violation of the export control regulations of the United States now or hereafter in effect if that disposition was made by a U.S. corporation, or a non- U.S. corporation subject to those regulations. SELLER will use its best efforts to assist BUYER in obtaining such approvals.
13. TERMINATION. Any and all orders for products and services made hereunder may be terminated in accordance with the following provisions: (a) Either party hereto may terminate such order(s) at any time by giving notice in writing to the other party, which notice shall be effective upon dispatch, should the other party file a petition of any type as to its bankruptcy, be declared bankrupt, become insolvent, make an assignment for the benefit of creditors, go into liquidation or receivership, or otherwise lose legal control of its business, or should the other party or a substantial part of its business come under the control of a third party. (b) Either party may terminate such order(s) by giving notice in writing to the other party should an event of Force Majeure, which extends the performance of one of the parties hereto of all, or substantially all of such party’s obligations hereunder, continue for more than three (3) months as provided in Section 14 hereof, and (c) Either party may terminate such order(s) by giving notice in writing to the other party in the event the other party is in breach of this Agreement and shall have failed to cure such breach within thirty (30) days of receipt of written notice thereof from the first party. In the event of the termination of the order(s) for products or services hereunder, for any reason, the parties shall have the following rights and obligations: (a) Termination of such order(s) shall not release BUYER from the obligation to make payment of all amounts then or thereafter due and payable; (b) SELLER shall have the right, at its option, to cancel any or all accepted orders from BUYER, which provide for delivery after the effective date of termination. (c) BUYER’s obligations pursuant to Section 9 hereof shall survive termination of such order(s), and (d) Without prejudice to any other remedies which either party may have in respect of any breach of these terms and conditions, neither party shall be entitled to any compensation or like payment from the other as a result of such termination.
14. FORCE MAJEURE. Upon giving notice to the other party, a party affected by an event of Force Majeure shall be released without liability on its part from the performance of its obligations hereunder, except for the obligation to pay any amounts then due and owing, but only to the extent, and only for the period, that its performance of such obligations is prevented by the event of Force Majeure. Force Majeure shall mean any event or conditions, not existing as of the date of signature hereof, not reasonably foreseeable as of such date and not reasonably within the control of either party, which prevents in whole or in material part, the performance by one of the parties of its obligations hereunder or which renders the performance commercially unreasonable, including, without limitation, sets of State or governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged shortage of energy supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning, and explosion. It is in particular expressly agreed that the occurrence of any condition or circumstance that would prevent the legal fulfillment by SELLER of its obligations hereunder under any applicable law or regulation, including any refusal or failure of any governmental authority to grant any permit or license required for the sale or export by SELLER of the products ordered hereunder, shall constitute an event of Force Majeure. During the period that the performance by one of the parties of its obligations hereunder has been suspended by reason of an event of Force Majeure, the other party may likewise suspend the performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable. To the extent such event of Force Majeure should extend for more than three (3) consecutive months, either party may terminate this Agreement without liability to the other party, except for payments due to such date, upon giving written notice to the other party.
15. DISPUTES AND GOVERNING LAW. These terms and conditions shall be governed by, and interpreted and construed in accordance with, the laws of the State of Minnesota, U.S.A., excluding the United Nations Convention of the International Sale of Goods. Any dispute, claim or controversy arising out of or relating to these terms and conditions shall be resolved in the competent courts of the State of Minnesota, to which exclusive jurisdiction the parties hereby submit themselves.
16. RELATIONSHIP. Performance under these terms and conditions does not make either party the employee, agent or legal representative of the other for any purpose whatsoever, each party shall be acting as an independent contractor. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.
17. MECHANICS LIEN and BOND CLAIMS. Upon our request, at anytime, you will provide us with any documents necessary for us to maintain full mechanics lien rights and/or full bond claim rights under applicable state law or contract or bond provision.
18. ASSIGNMENT. BUYER shall not have the right to assign or otherwise transfer its rights and obligations under these terms and conditions without the prior consent of SELLER. Any prohibited assignment shall be null and void.
19. NOTICES. Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail postage prepaid, return receipt requested, addressed to the respective addresses of the parties as set forth herein. Notice shall be effective upon the earlier of (a) receipt by the party to which notice is given, or (b) on the seventh (7th) business day following the date such notice was posted.
20. MODIFICATION. These terms and conditions shall not be deemed or construed to be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by the parties hereto.
21. DOCUMENTATION. All documentation supplied by SELLER to BUYER pursuant to this Agreement shall be in the English language and in the standards of measurement then being used by SELLER.
22. SEVERABILITY. In the event that any of the provisions of these terms and conditions are in conflict with any rule of law or statutory provision or are otherwise unenforceable under the laws or regulations of any government or subdivision thereof, such provisions shall be deemed stricken from these terms and conditions, but such invalidity or unenforceability shall not invalidate any of the other terms of hereof, and these terms and conditions shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of these terms and conditions.
23. WAIVER. No failure by either party to take action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.
24. ENTIRE AGREEMENT. THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDE ALL PREVIOUS AGREEMENTS BY AND BETWEEN SELLER AND BUYER RELATED TO THE PURPOSE OF PRODUCTS OR SERVICES HEREUNDER, AS WELL AS ALL PROPOSALS, ORAL OR WRITTEN, AND ALL NEGOTIATIONS, CONVERSATIONS OR DISCUSSIONS HERETOFORE HAD BETWEEN THE PARTIES RELATED THERETO. BUYER ACKNOWLEDGES THAT IT HAS NOT BEEN INDUCED TO ENTER THIS AGREEMENT BY ANY REPRESENTATIONS OR STATEMENTS, ORAL OR WRITTEN, NOT EXPRESSLY CONTAINED HEREIN.