NETWELL MARKETING, INC.
STANDARD TERMS AND CONDITIONS OF SALE
The terms and conditions set forth herein apply to all sales of products (“Products”) by Netwell Marketing, Inc. (“Netwell”). By placing any order for Products with Netwell, irrespective of the form or manner in which that order is placed, Purchaser will be deemed to have agreed to and accepted all of the terms and conditions set forth herein.
1. ACCEPTANCE OF ORDERS. An order for Products placed with Netwell will be binding upon Netwell only if (a) provides Purchaser a written acceptance of order, or (b) does not reject such order within 10 business days after its actual receipt of such order. All sales are final. Except in connection with a warranty claim under section 5 below. No products may be returned to NetWell.
2. PURCHASE PRICE AND PAYMENT TERMS. Unless otherwise agreed by Netwell in writing, the purchase price for any Products will be paid to Netwell at the time that such Products are ordered. The purchase prices for Products do not include any taxes, tariffs or similar charges which are or become payable by reason of the purchase, sale, use, import, export or transportation of Products, all of which are the responsibility of Purchaser and will be paid and discharged by Purchaser as and when the same become due. Any such taxes, tariffs or charges required to be collected by Netwell will be paid by Purchaser with the purchase price for the subject Products.
3. SHIPPING AND DELIVERY. Products will be shipped to Purchaser F.O.B. Netwell’s facility in Minneapolis, Minnesota, or related supplier locations, and Purchaser will be responsible for and will pay all charges, costs and expenses of shipping Products to Purchaser. If Netwell arranges for the shipping of Products to Purchaser, Netwell will have the right to determine, in its discretion, the means of transportation used, and Purchaser will pay directly, or reimburse Netwell for, all costs and expenses of such shipment. In no event will Netwell be liable to Purchaser for (a) any failure of any carrier to deliver any Products to Purchaser, (b) any delay by any carrier in the delivery of any Products to Purchaser or (c) any loss of or damage to any Products while in transit to Purchaser.
4. TITLE AND RISK OF LOSS. Notwithstanding anything contained in subparagraphs 1 and 2 of Article 2-510 of the Uniform Commercial Code (as in effect in the State of Minnesota), title to Products, and all risk of loss with respect to Products, will pass from Netwell to Purchaser upon the tender of such Products by Netwell to a carrier for delivery to Purchaser.
5. WARRANTY AND LIMITATIONS. Netwell is not the manufacturer of any Products. It therefore does not make any warranty whatsoever with regard to any Products. However, Netwell will replace any Products which are defective at the time of their delivery to Purchaser if (a) the defect is conspicuously noted by Purchaser on the receipt signed by Purchaser at the time that Purchaser accepts delivery of such Products, (b) the defect existed at the time that such Products were shipped to Purchaser by Netwell or the manufacturer of such Products, and (c) Purchaser provides Netwell written notice of the Defect within thirty (30) days following the delivery of such Products to Purchaser. Netwell’s sole obligation with respect to this commitment is the replacement of the defective Products, F.O.B. Netwell’s facility in Minneapolis, Minnesota. Any claim for the replacement of any Products hereunder is subject to substantiation by Netwell and Netwell may, in its discretion, require the return of allegedly defective Products, transportation prepaid, to establish a claim. NETWELL MAKES NO OTHER REPRESENTATION, WARRANTY OR GUARANTEE WITH RESPECT TO ANY PRODUCTS, WHETHER EXPRESS OR IMPLIED, AND HEREBY EXCLUDES AND SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY TYPE, NATURE OR DESCRIPTION, WHATSOEVER, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. NETWELL WILL HAVE NO LIABILITY WHATSOEVER TO PURCHASER OR ANY THIRD PARTY FOR ANY DAMAGES (WHETHER SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHER) ARISING FROM ANY ACTUAL OR ALLEGED BREACH OR FAILURE OF ANY REPRESENTATION OR WARRANTY RELATING TO ANY PRODUCT. NETWELL WILL IN NO EVENT BE RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER FORESEEABLE OR NOT, CAUSED BY ANY DEFECT IN ANY PRODUCT.
6. INSTALLATION. The installation of Products will be the responsibility of Purchaser and Netwell will have no obligation to Purchaser with regard thereto.
7. PAST DUE AMOUNTS; ENFORCEMENT OF RIGHTS. If any amount owing from Purchaser to Netwell is not paid when due, interest will accrue upon such amount at the rate of one and one-half percent (1.5%) per month (or if such rate is unlawful, the maximum rate allowed under applicable law); and Purchaser will pay Netwell for all costs and expenses incurred by Netwell in the collection of such amount, including reasonable attorneys’ fees.
8. LIMITATION OF LIABILITY. WITHOUT LIMITING ANY OTHER PROVISION CONTAINED HEREIN, NETWELL WILL NOT BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR, AND PURCHASER HEREBY RELEASES NETWELL FROM ANY CLAIM RELATING TO, ANY LOSS, COST OR DAMAGE ACTUALLY OR ALLEGEDLY ARISING OR RESULTING FROM ANY INSTALLATION, USE OR OPERATION OF ANY PRODUCTS, HOWEVER CAUSED OR ARISING, AND WHETHER FORESEEABLE OR NOT, INCLUDING SPECIFICALLY, BUT NOT EXCLUSIVELY, LOSSES, COSTS OR DAMAGES RELATING TO PERSONAL INJURY, PROPERTY DAMAGE, BUSINESS INTERRUPTION OR LOST PROFIT AND/OR LOSSES, COSTS OR DAMAGES CHARACTERIZED OR DESCRIBED AS DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE.
9. EXCLUSIVE TERMS. The terms and conditions set forth herein constitute the entire agreement and understanding of Netwell and Purchaser with regard to the purchase and sale of any Products, and supersede any and all proposals or communications or other understandings or agreements, whether oral or written, between Netwell and Purchaser with regard thereto. No change to or modification of any term or condition set forth herein will be valid, binding or of any effect unless in made writing and signed by Netwell. NO TERM OR PROVISION CONTAINED IN ANY OTHER DOCUMENT OR INSTRUMENT, INCLUDING SPECIFICALLY, BUT NOT EXCLUSIVELY, ANY PURCHASE ORDER PROVIDED NETWELL BY PURCHASER, WHETHER CONSISTENT OR INCONSISTENT, IN WHOLE OR IN PART, WITH THE TERMS AND PROVISIONS SET FORTH HEREIN, WILL BE OR BECOME PART OF ANY AGREEMENT BETWEEN NETWELL AND PURCHASER OR BE OR BECOME BINDING UPON NETWELL, AND ALL SUCH TERMS AND PROVISIONS ARE HEREBY EXPRESSLY REJECTED BY NETWELL.
10. GENERAL PROVISIONS. These terms and conditions will inure to the benefit of and will be binding upon each of Netwell and Purchaser and their respective heirs, executors, administrators, representatives, successors and assigns. The provisions set forth herein will be interpreted in a manner consistent with one another, so as to carry out the purposes and intent of Netwell and Purchaser; and if for any reason any such term or condition is determined to be unenforceable or invalid, such term or condition, or such part thereof as may be unenforceable or invalid, will be deemed severed herefrom, as if it had not been a part hereof, and the remaining terms and conditions will continue in full force and effect. These terms and conditions will be construed and enforced in accordance with the laws of the State of Minnesota (without regard to such State’s laws concerning conflict of laws), and any proceedings for the enforcement of any of these terms and conditions, or any disputes relating to Purchaser’s purchase of any Products, will be brought in federal or state courts located in Minnesota. Purchaser hereby consents and submits to the jurisdiction of such courts.