NORTHCORE INDUSTRIES, INC.
STANDARD TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale apply to all Orders submitted to Northcore Industries, Inc., a Wisconsin corporation (“Northcore”), in addition to the descriptions, specifications, prices, and other items set forth in or pertaining to the Order itself.
- GOVERNING PROVISIONS. THESE TERMS AND CONDITIONS SHALL CONSTITUTE THE ENTIRE AGREEMENT WITH REGARD TO PRODUCTS (“PRODUCTS”) SOLD BY NORTHCORE TO ITS CUSTOMER, AND SHALL BE GOVERNED BY AND SHALL BE CONSTRUED ACCORDING TO THE INTERNAL LAWS OF THE STATE OF WISCONSIN. ANY CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER COMMUNICATION FROM CUSTOMER SHALL BE OF NO FORCE AND EFFECT. NEITHER NORTHCORE’S ACKNOWLEDGEMENT OF A PARTICULAR PURCHASE ORDER NOR ITS FAILURE TO OBJECT TO CONFLICTING, CONTRARY OR ADDITIONAL TERMS AND CONDITIONS IN A PURCHASE ORDER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF ANY OF THE PROVISIONS HEREOF.
- U.N. CoNVENTION. The rights and duties of the parties hereunder shall not be governed by the provisions of the United Nations CONVENTION on contracts for the international sales of goods.
- CANCELLATION. No Order may be canceled or altered by Customer except upon terms and conditions acceptable to Northcore, as evidenced by Northcore’s written consent. In the event of such an approved cancellation by Customer, Northcore shall be entitled to payment of the full price, less the amount of any expenses saved by Northcore by reason of the cancellation.
- PRICES AND PAYMENT. All prices and payment terms are subject to change without notice, and the price of Products on order but unshipped will be adjusted to the price in effect at the time of the final accepted order. All prices listed on accepted and acknowledged purchase orders are payable as stated. Payment is due within 30 days after the date of the invoice. Notwithstanding the foregoing, at its sole option at any time, Northcore may require Customer to make payment in advance or by irrevocable letter of credit, and may defer shipment or cancel any order if Customer does not promptly provide such payment or a letter of credit. Any such letter of credit shall be in form and substance satisfactory to Northcore.
- LATE PAYMENTS. Any obligation of Customer to Northcore not paid as and when due shall bear interest from the due date until paid at the lower of: (a) the rate of 1? % per month, or (b) the highest rate permitted by applicable law.
- TAXES AND OTHER CHARGES. Any tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured by the transaction between Northcore and Customer shall be paid by Customer in addition to the prices invoiced. Customer shall provide Northcore at the time the Order is submitted with any applicable exemption certificate or other document acceptable to the authority imposing such tax, fee or charge. In the event Northcore is required to pay any such tax, fee or charge, Customer shall reimburse Northcore immediately upon request.
- RIGHT TO REFUSE ORDER. Northcore reserves the right to refuse to accept any Order that it determines to be detrimental to its best interests.
- OVER-RUNS AND UNDER RUNS. Unless otherwise specified on the Order, over-runs and under-runs not exceeding 10% of the quantity ordered shall be acceptable.
- DELIVERY. (a) Products. (i) All shipments will be F.O.B. Northcore’s loading point in Baraboo, Wisconsin; (ii) all risks of loss or damage in transit shall be borne by Customer after delivery to the carrier; and (iii) all costs of shipping shall be borne by Customer. (b)Other Terms: (i) Any additional expense arising from the use of a method or route of shipment requested by Customer shall be borne entirely by Customer. Northcore reserves the right to make delivery in installments, unless otherwise agreed in writing by it; all such installments are to be separately invoiced and paid for when due per invoice or other instructions from Northcore, without regard to subsequent deliveries, and any deliveries not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered merchandise. Delay in delivery of any installment shall not relieve Customer of its obligations to accept remaining deliveries. In any case, Customer shall bear all costs of any special packaging or containers requested by Customer, or otherwise deemed necessary in Northcore’s opinion, in connection with shipping. Northcore may, at any time, require any or all costs of shipping for which Customer is responsible under the terms hereof to be prepaid by Customer. (ii) Claims for shortages or other errors in delivery must be made in writing to Northcore within 10 days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Customer. Claims for loss or damage to Products in transit, after risk of loss has passed to Customer, shall be made to the carrier and not to Northcore. (iii) All delivery dates are approximate. Customer’s exclusive remedy for delays and for Northcore’s inability to deliver for any reason, including Northcore’s inability to produce Products that meet the requirements of this contract, shall be cancellation of the Order and a refund of the purchase price, if any, already paid for any undelivered Products and any corresponding prepaid transportation costs not otherwise recoverable by Customer from the shipper.
- RISK OF LOSS AND TITLE. Risk of loss of the Products shall pass to Customer at the time the Products are tendered for shipment and leave Northcore’s loading point. Title for the Products shall remain with Northcore until payment in full is received by Northcore.
- SECURITY INTEREST. This Agreement shall be considered a security agreement to the maximum extent allowed by law. Customer hereby grants to Northcore, and Northcore shall have, retain, and possess, a valid and perfected security interest in the Products and proceeds thereof, free of all liens, claims and rights of other parties, until Northcore is paid in full. Customer hereby irrevocably grants to Northcore a power of attorney to complete, sign on Customer’s behalf, and file all financing statements and other documents reasonably necessary to perfect Northcore’s security interest. Customer further agrees, upon Northcore’s request, to deliver to Northcore any financing statement and other documents and take such actions as Northcore may consider necessary in order to establish and maintain Northcore’s aforementioned valid and perfected security interest. If Customer defaults, or Northcore deems itself insecure of receiving payment, the full unpaid balance shall become immediately due and payable at the option of the Northcore, and Northcore may retake possession of the Products without court order. Customer agrees that it will not, directly or indirectly, sell, assign, convey, give away, or otherwise create any security interest in the Products or other rights provided under this Agreement without Northcore’s prior written consent.
- STORAGE. If the Products are not shipped within 15 days after notification to Customer that they are ready for shipping for any reason beyond Northcore’s reasonable control, including Customer’s failure to give shipping instructions, Northcore may store such Products at Customer’s risk in a warehouse or yard or upon Northcore’s premises, and Customer shall pay all handling, transportation and storage charges at the prevailing commercial rates upon submission of invoices therefor.
- PRODUCT DESCRIPTIONS AND LITERATURE. Any description of the Products, whether made in writing or orally by Northcore or its agents, or in specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, catalogues, product brochures, photographs and other illustrations or similar materials used in connection with the Order, are for the sole purpose of identifying the Products and shall not be construed as an express warranty and shall not form part of the terms of the transaction between Northcore and Customer. Any suggestions by Northcore or Northcore’s agents regarding use, application or suitability of the Products shall not be construed as an express warranty unless confirmed to be such in writing by Northcore.
- CHANGES. Northcore may at any time make such changes in design and construction of Products as Northcore deems appropriate, without notice to Customer. Northcore may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
- LIMITED WARRANTY. Northcore warrants that items of sale shall, at the time of delivery to the carrier, be free from defects in materials and workmanship. If any such items of sale are proved to Northcore’s satisfaction to have defects in material or workmanship at the time of delivery, then the affected items of sale will be repaired or replaced free of charge or seller will refund the purchase price of the defective items of sale. Any repair, replacement, or refund shall be determined by Northcore in its sole discretion and shall be Northcore’s only obligation and Customer’s exclusive remedy for any defective Products furnished by Northcore and shall be conditioned upon Customer’s return of such items to Northcore. Products may be returned by Customer only after written authorization has been obtained from Northcore. Any claim for breach of warranty shall be made within thirty (30) days after delivery of the items of sale that are the subject of such claim or shall forever be barred. NORTHCORE’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES HEREUNDER ARE SOLEY AND EXCLUSIVELY AS STATED HEREIN. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE WILL NOT APPLY AND ARE HEREBY DISCLAIMED. It is solely Customer’s responsibility to determine whether the Products are suitable for any application that may be intended by Customer for such items and any description in writing or made orally by the Northcore or Northcore’s employees or representatives is for the sole purpose of identifying the items and shall not be determined as an express warranty.
Northcore shall not be liable for any repairs, replacement or adjustments to Products or any costs of labor performed by Customer without Northcore’s prior written approval. All warranties shall expire in the event the Product is misused, neglected, or operated other than for its intended purpose.
Unless specifically stated in writing, Northcore makes no performance warranty of any kind respecting the Products. The effects of corrosion, erosion and normal wear and tear are specifically excluded from Northcore’s warranty. In the event performance warranties are expressly included in writing, Northcore’s sole obligation shall be to correct non-conformities in the manner and for the period of time provided herein above.
All terms herein shall be subject to applicable regulations as established by the United States Food and Drug Administration and any other applicable regulation or authority governing the Products.
- RETURNS. A Customer wishing to return any Product must first obtain a Return Authorization Number from Northcore. Any return shipment of Product without a Return Authorization Number issued by Northcore will not be accepted. Product in the Customer’s possession more than thirty days and any custom manufactured product cannot be returned.
- LIMITS ON LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES AND DISCLAIMER OF LIABILITY; CUSTOMER’S INDEMNITY. With respect to any and all breaches of this contract, Northcore’s liability shall in no event exceed the contract price for the Products out of which the claim arose.
NORTHCORE SHALL NOT BE SUBJECT TO AND DISCLAIMS: (1) ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR OF WARRANTY, (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT CLAIMS (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY NORTHCORE, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND (3) ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER.
Without limiting the generality of the foregoing, Northcore specifically disclaims any liability for penalties (including administrative penalties), special or punitive damages, damages for lost profits or revenues, loss of use of Products or any associated equipment, cost of capital, facilities or services, downtime, shut-down or slowdown costs, spoilage of material, or for any other types of economic loss. All the limitations and disclaimers contained in this Paragraph and in the rest of this contract shall apply to claims of Customer’s customers or any third party asserted by Customer against Northcore for indemnity or contribution, as well as direct claims of Customer against Northcore. Customer shall indemnify Northcore against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) that Northcore may incur as a result of any claim by Customer or others arising out of or in connection with Customer’s use of the Products and/or related products or services sold hereunder and based on Products or product or service defects not proven to have been caused solely by Northcore’s negligence.
- FORCE MAJEURE. In the event of fire, labor disputes, accident, flood or other casualty, governmental regulations, or any cause or condition beyond the reasonable control of either party that affects its ability to perform under an Order, the affected party may suspend or reduce performance accordingly without being deemed in breach of the Order; provided, however, that the other party may, at its option, cancel that part of the Order so delayed or affected and seek substitute performance from a third party.
- SEVERABILITY. If any provisions of these terms and conditions of sale shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provision hereof, which shall be construed as if such illegal and unenforceable provision(s) had not been inserted herein.