CD3 Products Manual
CD3, General Benefit Corporation |
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Patent
Pending | Made in USA | © 2019
54
Section 8 – Warranty Statement
Terms and Conditions
1.
Applicability.
These Terms and Conditions including the terms on the reverse side (
“Agreement” or “Terms”
) are the only terms that govern the sale
of the CD3 Unit(s) and related components (“
CD3 Unit(s)
”) by CD3, General Benefit Corporation (“
Seller
”) to the Buyer named on the reverse side
(“
Buyer
”). These Terms prevail over any terms and conditions of purchase submitted by Buyer.
2.
Shipping Terms & Taxes
.
a. Seller will deliver the CD3 Unit(s) FCA Seller’s facility in Princeton, Minnesota (INCOTERMS 2010) (the “
Delivery Point
”) using Seller’s standard
methods for packaging and shipping such CD3 Unit(s). The cost of shipping and insurance (if requested by Buyer) will be prepaid by Seller and added to
the invoice.
b. The Price does not include shipping charges, related insurance costs and taxes. Seller will estimate shipping, insurance and taxes on the reverse side;
however, Buyer shall be responsible for all such charges, costs and taxes regardless of such estimate.
c. The CD3 Unit(s) will be delivered within a reasonable time after the date of this Agreement. Seller shall not be liable for any delays, loss or damage in
transit.
3.
Title and Risk of Loss
. Title and risk of loss of the passes to Buyer upon delivery of the CD3 Unit(s) at the Delivery Point. As collateral security for the
payment of the purchase price of the CD3 Unit(s), Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of
Buyer in, to and under the CD3 Unit(s), wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all
accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest
granted under this provision constitutes a purchase money security interest under the Minnesota Uniform Commercial Code.
4.
Inspection and Rejection of Nonconforming CD3 Unit(s)
.
a. Buyer shall inspect the CD3 Unit(s) within two business days of receipt by Buyer (“Inspection Period”). Buyer will be deemed to have accepted the CD3
Unit(s) unless it notifies Seller in writing of any Nonconforming CD3 Unit(s) during the Inspection Period and furnishes such written evidence or other
documentation as required by Seller. “Nonconforming CD3 Unit(s)” means only the following: product shipped is materially different than identified in
this Agreement.
b. If Buyer timely notifies Seller of any Nonconforming CD3 Unit(s), Buyer shall give Seller written notice stating in reasonable detail why the CD3
Unit(s) is Nonconforming. If Seller agrees with such determination, Seller shall have a reasonable amount of time from the receipt of such notice to fix or
otherwise make such CD3 Unit(s) conforming.
c. Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming CD3
Unit(s). Except as provided under Section 4(b), Buyer has no right to return any CD3 Unit(s) purchased under this Agreement to Seller.
5.
Price.
Buyer will purchase the CD3 Unit(s) at the price (the “
Price
”) set forth in this Agreement.
6.
Payment
.
a. Buyer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated
daily and compounded monthly. Buyer will reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’
fees.
b. Buyer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to
Seller’s breach, bankruptcy or otherwise.
7.
Buyer Representations and Warranties
. Buyer represents and warrants to Seller that it has the full right, power and authority to enter into this
Agreement and to perform its obligations under this Agreement. Buyer also represents and warrants that the execution of this Agreement by its
representative whose signature is on this Agreement has been duly authorized by all necessary action of the Buyer.
8.
Limited Warranty.
The Buyer agrees to the terms of the Limited Warranty set forth in Exhibit A attached to this Agreement.
9.
Limitation of Liability
. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR
RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS (A) WHETHER SUCH DAMAGES WERE
FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR
EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD
HEREUNDER.
10.
Compliance with Law
. Buyer is in compliance with and shall comply with all applicable laws, regulations and ordinances. Buyer has and shall
maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
11.
Indemnification
. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and
permitted assigns (collectively, “Indemnified Party”) against any and all losses, claims, actions, judgments, settlements, interest, awards, penalties, fines, or
expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of
pursuing any insurance providers, incurred by Indemnified Party and arising out of or resulting from any claim of a third party or Seller arising out of or
occurring in connection with the products purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not
enter into any settlement without Seller’s or Indemnified Party’s prior written consent.