STANDARD TERMS AND CONDITIONS OF PURCHASE – PRODUCTION ORDERS
- Definitions. “MNSTAR Group” shall mean Highland Holdings, LLC d/b/a MNSTAR Group. “Buyer” shall mean the purchaser of goods and/or services from MNSTAR Group.
- Acceptance / Entire Agreement. This set of terms and conditions is binding and controlling, and together with the accompanying purchase order, quote or bid, [identified as___________] (collectively, “MNSTAR Group documents”) contains the entire agreement of the parties with respect the purchase and sale of the identified goods. All prior negotiations, discussions, proposal and drafts are superseded by this agreement Any different or additional terms or conditions contained in any request for quote, purchase order or other document provided by or from the Buyer shall not be effective or binding upon MNSTAR Group. In the event of any conflict or variance between the terms set forth herein and in the MNSTAR Group documents and those contained in any Buyer document (including without limitation, any Buyer purchase order, Buyer request for proposal, bid or quote) the Buyer document shall have no force or effect and the terms and conditions set forth herein and in the MNSTAR Group documents shall be controlling.
- Changes / Cancellations. Cancellation of an order or portions of an order will not be accepted after material has been purchased or fabrication has been started and will subject Buyer to special, direct, indirect and consequential damages; including, but not limited to a cancellation fee equal to MNSTAR Group actual costs incurred (with costs incurred including all materials costs, restocking fees, labor and fairly allocated overhead).
- Pricing. The price of the goods purchased by Buyer shall be set forth in the MNSTAR Group documents. The payment terms are fifty percent (50%) upon placement of the order and fifty percent (50%) net due thirty (30) days after delivery. Interest shall accrue on any unpaid balances at the rate of one and one-half percent (1.5%) per month. If MNSTAR Group incurs collection costs and legal fees in enforcing its rights under this agreement, MNSTAR Group is entitled to recover such costs and fees from Buyer. If an expedited delivery date was agreed in the MNSTAR Group documents, the price reflects expedited manufacturing, handling and delivery costs. If Buyer requests an expedited delivery date after the order has been accepted; MNSTAR Group may agree to an expedited delivery schedule upon payment of a forty percent (40%) expedited delivery surcharge and subject to MNSTAR Group ability to accommodate Buyer’s request based on its then-current manufacturing and production schedule.
- Pricing Escalation. The parties hereto agree to, from time-to-time, but in no event more than once per quarter, adjust upward the price to Buyer of Products in the event of a Significant Cost Increase, as defined below, in an equitable amount to such increase. A “Significant Cost Increase” for purposes of this Agreement and any purchase order or similar issued hereunder shall be an increase of 15% or more of the then-prevailing aggregate cost to Supplier of raw materials, component parts, or labor used to manufacture Product(s). In the event a Significant Cost Increase is no longer occurring, the price of the Product(s) shall revert back to that of the applicable purchase order.
- Change Orders. No change order shall be accepted and no proposed change order shall be effective unless it is in writing and accepted in accordance with these procedures. Once MNSTAR Group receives a proposed change order, and prior to its acceptance MNSTAR Group shall notify Buyer of any change in the price, production or delivery times which would result from the proposed change order. MNSTAR Group shall act reasonably and fairly in determining any price, production or delivery changes; but MNSTAR Group is entitled to take into consideration any potential effect on its production schedules and staffing levels as well as any increased (or lowered) costs. The change order shall only be accepted after this information has been provided, and both parties agree in writing.
- Delivery; Title. All goods are shipped EXWORKS (INCO Terms 2020) Title passes at MNSTAR Group docks on delivery into the possession of Buyer’s shipper. Buyer is solely responsible for all risks incidental to the shipping, transportation and delivery of the goods; even if MNSTAR Group has arranged for shipping and insurance. Buyer is solely responsible for the payment of all shipping and insurance costs. Notwithstanding the delivery of the goods EXWORKS, the Buyer has the right to inspect all goods upon physical receipt at its location to determine quality and conformity for the purposes of accepting or rejecting the goods.
- Warranty. MNSTAR Group warrants to the original purchaser, or end user of all equipment sold by MNSTAR Group the goods will be free from defects in materials and workmanship and will comply with and perform in accordance with Buyer’s specifications under normal use for a period of thirty-six (36) months This limited warranty does not cover damage caused by 1) improper installation or operation; 2) misuse or negligence; 3) shipping damage; 4) repairs or attempted repairs by any person other than an authorized service technician; 5) repairs using spare parts not provided by Seller; 6) failure of Buyer or its end user to conduct normal and routine maintenance on goods or components in accordance with the operations manual; 6) improper or unauthorized modifications to goods or components; or 7) accident, catastrophe, or act of God . THE REMEDIES STATED HERE ARE EXCLUSIVE. SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, OR OTHER COSTS, EXPENSES OR DAMAGE, INCLUDING HARM TO OTHERS OR LOSS OF PROFITS, RESULTING FROM THE DELIVERY, USE OR FAILURE OF THE PRODUCT, OR FROM ANY OTHER CAUSE WHATSOEVER INCLUDING NEGLIGENCE. BY ACCEPTING DELIVERY OF THE PRODUCT SOLD HEREUNDER, THE BUYER ACCEPTS THIS LIMITATION OF REMEDIES AS REASONABLE AND ENFORCEABLE IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE FOR THE PRODUCT. MNSTAR Group disclaims and all other warranties, express or implied.
- Warranty Claims. All warranty claims must be made in writing as promptly as possible after the defect or failure is discovered and in any event within five (5) days. Buyer (or the end-user) must immediately stop using the defective or non-conforming goods. MNSTAR Group may require Buyer to return the defective or non-conforming goods to MNSTAR Group for inspection and testing as a condition of processing the warranty claim. TO THE FULLEST EXTENT ALLOWED BY LAW, BUYER’S EXCLUSIVE REMEDY AGAINST SELLER AND MNSTARS SOLE OBLIGATION FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO MNSTAR’S WARRANTY AND REPLACING GOODS THAT DO NOT CONFORM TO SPECIFIATIONS OR ARE OTHERWISE DEFECTIVE, AT MNSTAR’S OPTION, REPAIRING SUCH GOODS OR REFUNDING THE PURCHASE PRICE.
- Legal Fees. In the event of any dispute over, relating or referring to this agreement, including but not limited to collections actions, breach of contract/agreement actions, declaratory judgment actions or equitable injunction actions the predominantly prevailing party will be entitled to its reasonable legal costs, expert fees, and attorneys’ fees.
- Force Majeure, Delay. MNSTAR Group will not be responsible for any failure of or delay in performance due to acts of God, war, riots, embargoes, acts of civil or military authorities, public health emergencies, fires, floods, accidents, quarantine restrictions, mill conditions, plant machinery breakdowns, differences with workers, delays in transportation, shortage of cars, fuel, labor, or materials that result from any of the forgoing or otherwise, or any cause beyond its reasonable control.
- Governing Law. This agreement is made and to be performed in the State of Minnesota. Any action to construe or enforce its terms shall be heard in a court of competent jurisdiction located within the State of Minnesota and shall be determined in accordance with the laws of the State of Minnesota, both substantive and procedural and without regard to its laws concerning conflicts of laws. Buyer expressly consents to the jurisdiction, both personal and subject matter, of the state and federal courts located within the State of Minnesota.
DATE: December 15, 2021