TERMS AND CONDITIONS OF SALE
All customer orders for the products (“Products”) and services (“Services”) of HSIO Technologies will be subject to the terms and conditions below. Both parties agree that this document (“Terms & Conditions”) will govern and control the relationship between HSIO Technologies (“Seller”) and the customer (“Buyer”). These Terms & Conditions constitute the complete and final agreement between the parties and supersedes all prior negotiations and agreements between the parties concerning this subject matter. No other document, including a Buyer’s terms and conditions of purchase, will be a part of this transaction, unless specifically agreed to in writing by the Seller’s authorized personnel.
No order is binding on the Seller unless and until it is accepted by the Seller in writing, at its sole discretion. The Seller’s acceptance of the Buyer’s order is conditioned upon the Buyer’s assent to these Terms & Conditions.
Price lists and specifications are subject to change without notice. However, prices that are quoted in a written proposal are effective for a period of sixty (60) calendar days from the date of the written proposal, unless stated otherwise in the proposal.
ORDERS FOR PRODUCTS
The Seller reserves the right to refuse orders and limit the types and amounts of Products ordered by the Buyer. The Buyer’s order will be accepted by the Seller subject to final credit approval by the Seller.
All payments will be due within thirty (30) calendar days from the invoice date, unless otherwise specified on the invoice. All payments must be in U.S. currency. Interest will be charged on all accounts that are over past due at a rate of 1.5% per month, or the maximum amount allowed by law.
Orders that have been accepted by the Seller may not be canceled or amended by the Buyer without the Seller’s consent. Cancellation charges may be applied at the Seller’s discretion, and may be up to 100% of the order price.
All Products furnished to a Buyer will be shipped FCA point of origin, designated by the Seller. The Seller reserves the right to select the method of delivery. The Seller will make commercially reasonable efforts to deliver the Products by the estimated delivery date, but shipment of the Products is subject to availability. The Seller disclaims liability for any failure to meet the estimated delivery dates. The risk of loss will pass to the Buyer upon delivery to the common carrier. All Products will remain personal property of the Seller until payment is made in full to the Seller.
ACCEPTANCE OF GOODS
Final inspection and acceptance of the Products will be made by the Buyer at the point of delivery, within ten (10) calendar days of delivery. In the event of any shortage or discrepancy in a shipment of goods, the Buyer will promptly notify the Seller, and will furnish any written evidence or other documentation requested by the Seller. If the evidence indicates that a shortage or discrepancy does exist, the Seller will promptly deliver additional or substitute goods to the Buyer. However, the Seller may require the Buyer to return all goods prior to the delivery of the substitute goods. If the Buyer fails to give Seller timely notice of any shortage or discrepancy, the goods will be deemed to accepted under these Terms & Conditions.
Because all of the Seller’s Products are built to order, the Seller does not generally accept returns. All statements, technical information, and recommendations related to the Products are based on information that is believed to be reliable and reliable, but is not guaranteed. As such, before ordering Products from the Seller, the Buyer should carefully determine the suitability of the Products for their intended use and order the Products accordingly.
The Seller reserves the right to refuse the return or exchange of any Product. Requests by the Buyer for a return or exchange of a Product must be made to the Seller within fourteen (14) calendar days of delivery receipt. If the Seller authorizes a return or exchange, the returned Product must be sent to the Seller in its original packaging, with all accessories, manuals, and other items that were originally included in the shipment to the Buyer. No return or exchange is final until the Seller approves it. If the Seller authorizes a return, the Buyer will be credited with the original price of the product (taking any discounts or price reductions at the time of purchase into account), less (i) shipping, handling, and transportation costs; and (ii) a restocking charge equal to at least 50% of the original price of the returned Product.
If the Buyer defaults on the terms of payment of any invoice, or if the financial responsibility of the Buyer becomes impaired or unsatisfactory in the sole judgment of the Seller, the Seller reserves the right to change the terms of payment and/or to defer or discontinue further Product shipments until past due payments are made and satisfactory assurance of the Buyer’s credit standing is received by the Seller. The Seller may also stop shipments of Products in transit, and may repossess Products that are in the Buyer’s possession that have not been paid for in full. The Buyer agrees to enter into security agreements, UCC financing statements, and other documents reasonably requested by the Seller to enable the Seller to effectively exercise, perfect, and protect such rights. Buyer will be liable for all court costs, legal fees, attorneys fees, and other expenses incurred by the Seller in collecting past due amounts.
Subject to the limitations set forth below, and provided that the Buyer at all times remains in compliance with these Terms & Conditions, the Seller warrants to the Buyer as follows: As the Seller’s sole and exclusive liability, and as the Buyer’s sole and exclusive remedy under these Terms & Conditions, the Seller warrants to the Buyer that, at its option, the Seller will either replace or repair any defective Products after written notification of the alleged defect and the return of such Product to the Company, shipping charges to be borne by the Buyer and/or Customer, within the warranty period set forth below. Repair and replacement items, at the Seller’s sole discretion, may be new or remanufactured items that are equivalent to new in performance.
Hardware: With the exception of items listed below, for a period of one hundred and eighty (180) calendar days from the date of delivery, all hardware Products manufactured by the Seller will be free from defects in material and workmanship.
Test Sockets and/or Contactors: Test Sockets and/or Contactors and any other item that comes into contact with the measured medium will be free from defects in material and workmanship for ninety (90) calendar days from the date of delivery.
Repair and Replacement Warranty: Provided that the Buyer or Customer gives the Seller written notice within the original warranty period, and any alleged defect is not excluded as otherwise stated in these Terms & Conditions, then the Seller will warrant the repair or replacement items to be free from defects in material and workmanship for the remaining original warranty period.
Repair and Replacement Non-Warranty: The Seller will warrant out-of-warranty repair and replacement items to be free from defects in material and workmanship for ninety (90) calendar days from delivery.
The Buyer assumes responsibility for the selection of the Products to achieve the Buyer’s intended results and for the use of the results obtained by the Products. The Seller does not warrant that the Products will necessarily meet the Buyer’s requirements or that operation of the Products will be uninterrupted or error free.
Warranty Exclusions: The Seller’s warranty of the Products does not apply to any Product that the Seller determines has, by the Customer, Buyer, or any other party (whether or not the intended end-user): (i) been returned in other than its original condition; (ii) has changed or degraded due to normal or extraordinary wear and tear; (iii) been used or misused outside the scope of the intended or design use of the Product; (iv) been subjected to operating or environmental conditions in excess of the limits set forth in an applicable operating manual or established in the applicable specifications; (v) been commingled or incorporated with Products not approved by the Seller; (vi) not been properly installed, serviced, used, and maintained; or (vii) been damaged or modified after delivery.
Warranty Limitations: The Seller’s warranty set forth above for the Products is the Seller’s sole and exclusive liabilities, and the Buyer or Customer’s sole and exclusive remedy under these Terms & Conditions. These remedies extend only to the Customer or Buyer, and not to any subsequent customers, users, or buyers. The Seller makes no other warranty and disclaims all warranties or liability as to any Product or Intellectual Property, whether express, implied, statutory, or otherwise, including all warranties of merchantability, fitness for a particular purpose, title, ownership, and as to non-infringement, and misappropriation. The warranty obligations of the Seller and the remedies of the Buyer set out herein are the sole and exclusive remedies of the Buyer and exclusive obligations of the Seller for all claims and other liability arising out of or in connection with any warranty or nonconformance, defect, or other breach of warranty.
The Buyer agrees that it will indemnify, defend, and hold the Seller and its officers, directors, employees, agents, owners, subsidiaries, and affiliates harmless from and against all claims, damages, injury, liability, losses, and costs (including attorney’s fees), whether or not based on contract, tort (including negligence and strict liability) or otherwise. All liability terminates no later than the warranty periods set forth in these Terms & Conditions. The Seller’s maximum liability arising under these Terms & Conditions will not exceed the price paid by the Buyer for the Products. The Seller will not be liable for any third-party claims.
INTELLECTUAL PROPERTY RIGHTS
The Seller does not grant, convey, or confer upon the Buyer any ownership, interest, right or license, either express or implied, in or to any intellectual property of the Seller, except for the limited license implied by law for the Buyer to use and operate the Products for the normal and intended use of the Products. In addition, the Seller owns and retains all intellectual property in the Products, regardless of whether the Product was developed to specifications furnished by the Buyer, and without regard to whether such Product is a Standard Product or a Custom Product.
“Confidential Information” means all information published or unpublished, written, oral, or electronic, and conveyed in any form or media that relates in any way to the Seller’s past, present, and future business practices, operations, financial and investor information, business plans, development ideas, concepts, engineering data, manufacturing processes and techniques, reports, films, tapes, computer databases, and other information embodied in any of the Products or otherwise disclosed by the Seller. Confidential Information also includes all patents, copyrights, trademarks, know-how, trade secrets, or other intellectual property, drawings, blueprints, designs, specifications, diagrams, software, equipment, machinery, and technology of any other type which has been disclosed at any time by the Seller.
Both parties acknowledge and agree that the Confidential Information disclosed by the Seller to the Buyer is of significant value and that the Buyer will not, without the Seller’s express prior written permission in each case, use the Confidential Information for any purpose whatsoever other than as needed to use and maintain the Products. The Buyer further agrees that it will retain in strict confidence all Confidential Information, and will take all reasonable precautions to prevent disclosure of the Confidential Information to any third parties.
In the event that any of these Terms & Conditions are in conflict with any law or statute, these Terms & Conditions will be deemed to be amended to conform to such provisions. If these Terms & Conditions cannot be amended without materially altering the intentions of the parties, the affected provisions will be stricken without invalidating the remaining Terms & Conditions.
No failure or delay on the part of a party in exercising any right under these Terms & Conditions will constitute a waiver of that right. No waiver of any right will be effective unless given in a signed writing.
The Seller is not liable for any failure to perform under these Terms & Conditions due to circumstances beyond the Seller’s control. Circumstances beyond the Seller’s control shall include, without limitation, acts of God, fire, floor, war, acts of terrorism, governmental action, accident, labor unrest, and inability to obtain materials, equipment, or transportation.
These Terms & Conditions will be interpreted and construed in accordance with the laws of the State of Minnesota, United States of America.
Any controversy or claim arising out of or relating to these Terms & Conditions will be settled by binding arbitration in Minneapolis, Minnesota, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.