TERMS & CONDITIONS OF SALE
This document contains the terms and conditions that apply to Customer's purchases of hardware products and components (collectively “Products”) and related services such as installation or customization (“Services”) from Bluewater Labs, LLC ("Company"). Acceptance of Customer's order is based on these terms and conditions of sale applying. By signing Company’s Quote or accepting delivery of Products or Services from Company, Customer agrees to be bound and to accept these terms and conditions. These terms and conditions will apply unless Customer and Company have signed a separate purchase agreement with different terms and conditions which expressly control.
1. Terms of Sale. Standard lead times apply to all orders. Unless otherwise mutually agreed in writing, accepted orders are non-cancelable and Products are non-returnable. Changes to delivery dates and order quantities for accepted orders cannot be changed without the prior written agreement of Company. Unless otherwise specified on the Quote, payment terms are net 30 days from invoice date with approved credit. If credit has not been established with Company, terms may be designated as payment in advance. Company reserves the right at any time and for any reason to require payment in advance, or otherwise to modify, suspend, or terminate any credit terms previously extended to Customer. Company will be entitled to refuse or delay shipments for failure by Customer to pay within terms any payments due Company, whether on this or any other contract between Company and Customer. All shipments are F.O.B. shipping point for U.S. domestic shipments and Ex Works (INCOTERMS 2010) for shipments to locations outside the U.S. The full purchase price will be invoiced upon delivery to a common carrier. A 1.5% per month service charge, or the maximum permitted by law, whichever is less, may be added to delinquent accounts. If it becomes necessary for Company to incur collection costs or institute a suit to collect any amount due and payable, Customer agrees to pay such additional collection costs, charges, and expenses, including attorney's fees if the account is placed in the hands of an attorney or an agency for collection. Payments should be made according to the instructions on the face of the invoice, based on the form of payment described below.
2. Forms of Payment. Acceptable forms of payment include check, money order, wire transfer, SWIFT Transfer, all in United States of America currency only (USD).
3. Shipping Charges; Taxes. Separate charges for shipping and handling will be shown on the invoice(s). Unless Customer provides Company with a valid and correct tax exemption certificate applicable to the Product ship-to location prior to Company's acceptance of the order, Customer is responsible for sales and all other taxes associated with the order. If applicable, a separate charge for taxes will be shown on the invoice.
4. Title; Risk of Loss, Security Interest.
a. Title to Products and risk of loss passes from Company to Customer upon shipment from Company's facilities and delivery of Product to a common carrier. Title to any software in the Products will remain with Company or its applicable licensor(s).
b. Company reserves a purchase money security interest in the Products until Customer has paid for the Products in full. Customer will execute, deliver, or endorse any and all instruments and documents reasonably required for Company to secure or perfect its rights under this section.
5. Claims for Omitted or Damaged Goods. Any claims by Customer for omission of Products in the shipped goods, shortages of Product, or damaged goods in a shipment are waived by Customer unless Customer provides notice to Company within 10 days after Customer's receipt of shipment.
6. Limited Warranties.
(a) Hardware Warranty. Company warrants that hardware Products will be free from defects in materials and workmanship for a period of 24 months from delivery. If any hardware Product fails to conform to the warranty in this Section, Company will, at its option, repair or replace the non-conforming Product with a conforming Producthaving substantially identical form, fit, and function and deliver the repaired or replacement Product to a carrier for land shipment to customer within a reasonable period after Company receives from Customer (i) notice of such non-conformance, and (ii) the non-conforming Product; provided however, that if in its opinion, Company cannot repair or replace a non-conforming Product on commercially reasonable terms it may choose to refund the purchase price for the subject Product. If Company confirms that a hardware Product has failed to conform to the warranty in this Section within 30 days after original delivery, Company will not only provide repair or replacement of non-conforming parts as described above, but will also, at its own cost for both labor and travel, dispatch a service technician to provide on-site repairs of the Product at the Customer premises. Repair parts and replacement Products may be reconditioned or new. All replacement Products become the property of Company. Repaired or replacement Products will be subject to the warranty, if any remains, originally applicable to the Product repaired or replaced. Unless otherwise determined by Company, Customer must obtain from Company a Return Material Authorization (RMA) Number prior to returning any Products to Company. Products returned under this Warranty must be unmodified. As a condition to Company's obligations under this Section, Customer will return Products to be examined and replaced to Company's facilities, in shipping cartons which clearly display a valid RMA number provided by Company. Customer acknowledges that replacement Products may be repaired, refurbished or tested and found to be complying. Customer will bear the risk of loss for such return shipment and will bear all shipping costs, and Company will deliver replacements for Products determined by Company to be properly returned and willbear the risk of loss and costs of shipment of repaired products or replacements; provided that for any Product that Company confirms has failed to conform to warranty within 30 days after delivery, Company will bear the risk of Product loss or damage in shipment and shipping costs both ways. Products determined by Company to be not properly returned will be redelivered to Customer FOB Company's facilities upon payment of shipping costs by Customer. Company's sole obligation under the warranty described or set forth here will be to repair or replace non-conforming products as set forth in this Section, or at its sole discretion, to refund the documented purchase price for non-conforming Products to Customer.
(b) Services Warranty. Company warrants that Services it sells will be provided in a professional and workmanlike manner. As Customer’s exclusive remedy for breach of this warranty, Company will re-perform non-conforming Services to achieve conformity with this warranty.
(c) Limitations and Exclusions. The foregoing Product warranty will not apply to wear items, such as pump seals and flaps. Company will have no warranty obligation with respect to Products subjected to or Services affected by abuse, misuse, negligence, modification, or accident. For the avoidance of any doubt and without limiting the scope of the prior sentence, no warranty is provided to parties who have obtained Products or Services from any party not authorized by Company to resell such Products or Services.
7. Limitation of Warranty and Remedies.
THE WARRANTY SET FORTH IN THE PRECEDING SECTION IS THE ONLY WARRANTY APPLICABLE TO PRODUCTS AND SERVICES PURCHASED BY CUSTOMER. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. COMPANY’S LIABILITY WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE WILL NOT EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SUBJECT PRODUCT OR SERVICE. COMPANY’S LIABILITY UNDER ANY INDEMNITY WILL NOT EXCEED THREE (3) TIMES THE PURCHASE PRICE PAID BY CUSTOMER FOR THE SUBJECT PRODUCT OR SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE PRICE STATED FOR THE PRODUCTS AND SERVICES IS A CONSIDERATION IN LIMITING COMPANY'S LIABILITY. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
IN ADDITION TO THE WARRANTIES DISCLAIMED ABOVE, COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY AND WARRANTIES, IMPLIED OR EXPRESSED, FOR USES REQUIRING FAIL-SAFE PERFORMANCE IN WHICH FAILURE OF A PRODUCT OR SERVICE COULD LEAD TO DEATH, SERIOUS PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED IN ANY OF THESE APPLICATIONS.
8. Indemnification. Company will defend or settle any claim, suit, or action against Customer based on an allegation that any Product purchased by Customer from Company infringes any third party's U.S. patent or copyright; provided, that Customer has made no modification or alterations to the Product and that Customer gives Company prompt written notice of any claim or suit, sole authority to defend or settle as it sees fit, and full cooperation. Company may, at its sole option and expense (i) defend the claim, suit or action (ii) procure for Customer the right to continue using the Product (iii) modify the product so that it is non-infringing (iv) procure a replacement product that has substantially the same functionality, or if none of the above options is reasonably available (iv) refund to customer the purchase price originally paid less a use credit for the period of use.
Company has no liability for any claim, suit or action based in whole or in part upon or arising out of compliance with Customer's designs, specifications or instructions, modification of the Products, or the combination of the Products with products or items not furnished by Company, including, but not limited to, claims involving in whole or in part the way the Product is used, or claims relating to compliance with industry standards. THIS STATES COMPANY'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM, SUIT, OR ACTION ALLEGING INFRINGEMENT OF ANY THIRD-PARTY PATENT OR COPYRIGHT.
9. Governing Law. This Agreement and any sales made under it will be governed by the laws of the State of Minnesota. The United Nations Convention on Contracts for the International Sale of goods will not apply. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States. Customer agrees to comply with all United States laws concerning export or re-export of products and related technology and documentation.
10. Disputes. The parties agree that the courts of the State of Minnesota will have exclusive jurisdiction over any claim, or dispute or controversy (whether in contract, tort or otherwise) against Company, its agents, employees, successors, assigns or affiliates arising out of or relating to this document, Company's Products or Services, advertising, or any related purchase. Customer agrees to appear in any such action and hereby consents to the jurisdiction of such court.
11. Force Majeure. Company will not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Company's reasonable control, including, but not limited to, delay in transportation, unavailability of materials or delay in delivery by Company's vendors.
12. Export Restrictions. Customer agrees to comply with all applicable United States export control laws and regulations concerning export and re-export of Products, technology and documentation, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.
13. Severability. Any waiver of or modification to the terms of this Agreement will not be effective unless executed in writing and signed by Company. If any provision of these terms and conditions are held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this document (In the event of any inconsistency between these terms and conditions and any other related agreements between Customer and Company, the terms of this document will prevail unless any other agreement(s) are signed by both parties and state its/their terms and conditions control).
14. Entire Agreement. The terms and conditions set forth herein constitute the entire agreement between Company and Customer. Company's offer to sell is expressly limited to the terms stated herein. Company will not be bound by, and expressly rejects, any terms of Customer's order or other Customer documents which would add to, modify, or are in any way different from the terms set forth in this document.