1. Conditional Acceptance. Unless otherwise agreed to and accepted by Velocity, any QUOTATION issued by Velocity may be accepted by Buyer only for a period of sixty (60) days from the date the QUOTATION is issued. Buyer’s attempted acceptance of a Velocity QUOTATION after this period creates no obligation on Velocity unless subsequently accepted by Velocity in writing. “Buyer” means Velocity’s customer as specified on the Velocity QUOTATION.
2. Terms and Conditions. Any Velocity QUOTATION is conditioned on Buyer’s acceptance of these Velocity TERMS OF SALE. Buyer shall be bound by these TERMS OF SALE without change, unless otherwise set forth in writing and accepted in writing by Velocity. Any terms and conditions from any other source, including but not limited to, Buyer’s purchase orders or acknowledgments, are deemed excluded. These TERMS OF SALE shall control and take precedence over any conflicting terms and conditions in any other document. An “Order” or “Purchase Order” means Buyer’s purchase order or any other order or contract form accepted by Velocity in writing.
3. Goods Furnished. Velocity agrees to furnish only the quantity and type of goods described in the Velocity Order Acknowledgement, Pro Forma or QUOTATION, which may vary from project plans, specifications, and/or Buyer’s Order(s). Velocity shall not be obligated to make any changes or additions to the goods described in the Velocity Order Acknowledgement, Pro forma or QUOTATION unless Velocity agrees in writing and, if necessary, an equitable adjustment is made to the price and delivery terms. Unless otherwise agreed in writing by Velocity, all goods supplied by Velocity under an Order, including those produced to meet an exact specification, will be subject to tolerances and variations consistent with usage of trade, regular Velocity manufacturing practices or practical testing and inspection methods. Such tolerances and variations shall not create any separate Velocity warranties.
4. Contract Price. The “Contract Price” means the price for goods to be furnished by Velocity as specifically identified in the QUOTATION, and which is based on the particular drawings, specifications, make-ups, or other documents received by Velocity. Items omitted from the QUOTATION are expressly excluded. The Contract Price is conditioned on payment by Buyer within thirty (30) days of the invoice date, and no retainage may be deducted by Buyer from the Contract Price.
5. Order Holds; Cancellation. After Buyer’s Order has been accepted by Velocity, the Order cannot be put on hold, modified, canceled or changed without Velocity’s written consent. In the event that Buyer places any Order on hold for more than thirty (30) days, Buyer shall be responsible for, and reimburse Velocity for, all material, labor and overhead costs incurred by Velocity as a result of the hold. If Buyer cancels any Order, Buyer shall be responsible for payment to Velocity for reasonable cancellation or order change charges. Such cancellation or order change charges may include, but not be limited to, the Contract Price for all goods shipped by Velocity to Buyer, the Contract Price for all finished goods inventory in the possession of Velocity, all other direct costs incurred by Velocity to the extent not able to be mitigated using reasonable mitigation efforts, and storage charges as outlined in Section 8 of these TERMS OF SALE. In addition, if at the time the Buyer cancels the Order Velocity has work in process with respect to the Order on any of its shop floors, Velocity shall be allowed to finish the production on the goods that are on the shop floor at the time the Order is canceled, place the goods in finished goods inventory, and bill the Buyer the Contract Price for such goods.
6. Other Costs. Buyer acknowledges and agrees that the Contract Price does not include manufacturer’s gross receipts taxes, sales or use taxes, or any other state, local, and federal taxes and/or assessments that may be payable on the transaction, unless otherwise agreed in writing by Velocity. If Buyer’s order is tax exempt, a tax exempt certificate approved by Velocity’s finance department must be on file prior to Buyer’s order being produced. All additional delivery costs arising from local labor agreements shall be the responsibility of Buyer. Buyer further agrees that all square foot pricing is invoiced on the basis set forth in the Velocity QUOTATION. Velocity reserves the right to invoice Buyer for any and all unknown surcharges and miscellaneous costs assessed against Velocity by its vendors after the QUOTATION date.
7. Delivery; Title to Goods and Risk of Loss. The estimated delivery date, if specifically stated on the Velocity Order Acknowledgement or Pro Forma, is an estimate only and Velocity shall not be bound by such date. Velocity shall not be liable for direct, incidental or consequential loss or damage to Buyer, or to any third parties, due to delay or not delivering in accordance with the estimated delivery date regardless of the cause. Buyer has the option of picking up the goods at the Velocity facility. If Buyer does not elect to pick up the goods at the Velocity facility, Velocity will select the method of delivery to the Buyer. Title to the goods shall pass at the time the goods leave the Velocity facility unless otherwise set forth in writing by Velocity. Risk of loss shall be transferred to the Buyer in accordance with the applicable project shipment and delivery.
8. Storage Charges. Any completed Orders for which Buyer fails to accept delivery of goods by the delivery date stated on the Velocity Order Acknowledgement or Pro Forma shall be subject to storage charges at a rate of $150.00 per rack per month. These storage charges shall be payable by Buyer net 30 days. Under no circumstances shall Velocity be liable for any costs, fees, damages or loss to goods or materials stored pursuant to this Section. Velocity specifically disclaims any liability for, or damage resulting from, the storage of finished goods or materials stored hereunder in any manner contrary to industry standards or specific storage requirements identified by Velocity in any product documentation.
9. Payment Terms. Payment terms for any Order shall be specified on the invoice in calendar days, with no retainage or set-off allowed. Buyer’s payment obligations will not be conditioned on Buyer’s receipt of payment from any third party. Buyer shall be responsible for Velocity’s costs of collection, including but not limited to, reasonable attorney fees in the event of Buyer’s default or non-payment. Velocity reserves the right to withhold future shipments if timely payment for prior shipments has not been received.
10. Credit Terms. Velocity may, in its sole discretion, agree to grant credit terms to Buyer. If Velocity exercises its option to refuse to grant credit to Buyer, Velocity shall not be liable for any damage, loss or cost whatsoever to Buyer. Any credit terms are subject to Velocity’s continuing approval of Buyer’s credit. If, in Velocity’s sole discretion and determination, Buyer’s credit or financial standing becomes unsatisfactory, Velocity may withdraw or modify its credit terms.
11. Inspection. Buyer shall inspect the goods upon receipt and notify Velocity in writing of any claim that the goods are nonconforming within ten (10) days after delivery. Velocity shall be allowed a reasonable opportunity to inspect the goods, and cure any claim of alleged non-conformity, including reasonable access to the goods whether on Buyer’s premises, at a storage facility or on the job site. No goods may be returned to Velocity for credit without Velocity’s prior written consent.
12. Limited Warranty. Velocity provides a limited warranty for goods shipped pursuant to an Order. Velocity’s warranty terms are set forth in a separate warranty certificate. Velocity’s warranty will be void in the event that full payment is not received for goods and services within the agreed upon terms of sale. Velocity’s limited warranty, as provided to Buyer, may only be modified upon written approval of Velocity’s President or Vice President(s). Any verbal representations intended to modify any existing Velocity limited warranty shall be invalid and unenforceable against Velocity.
13. Disclaimers. VELOCITY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY OTHER OBLIGATION OR LIABILITY NOT EXPRESSLY SET FORTH IN ITS STANDARD TERMS OF WARRANTY. VELOCITY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND.
Buyer’s rights and obligations regarding any goods supplied by Velocity, and proven to be defective, are limited to those set forth in Velocity’s Limited Warranty provided to Buyer. Velocity will not accept any charge or expense submitted by Buyer or any third party, including but not limited to any labor costs for modification, removal, inspection, testing or installation of any goods sold by Velocity under an Order or for any replacement goods.
14. Limitation of Liability. Velocity shall not be liable or responsible for any system or application design, either to Buyer or any third party. Under no circumstances shall Velocity be liable to, or agree to indemnify Buyer or any third party for, any loss, costs, damage or expense (including attorney fees) resulting from Buyer’s or any third party’s acts, omissions or conduct. Buyer shall defend, indemnify and hold Velocity, its employees, agents or assigns harmless from and against any and all loss, costs, damage, or expense (including attorney fees) resulting from any charge or claim of personal injury or property damage arising out of Buyer’s failure to perform any obligations under the Order, or for the negligence, intentional acts or willful misconduct of Buyer, its employees, agents or representatives.
15. Force Majeure. Velocity will not be responsible for its failure to perform any obligations to Buyer, or the delay in performance thereof, caused by any Force Majeure event, or other action beyond its reasonable control. “Force Majeure” will include, but not be limited to, acts of nature, floods or fire; transportation, power or other supply shortages or unavailability; strikes or labor shortages; failure or delays of any third party vendors or subcontractors; government actions, orders or restrictions; wars, insurrections, acts of terrorism; or the failure of any suppliers, subcontractors, carriers, or party to substantially meet its performance obligations under this Agreement. If the Force Majeure event continues for a period of time that makes performance of the project impossible or impracticable, either Party may terminate this Agreement upon thirty (30) days’ written notice to the other Party.
16. Governing Law. This agreement, and any Order, shall be governed by, and construed according to, the laws of the State of Minnesota.
17. Entire Agreement. Velocity’s QUOTATION, these TERMS OF SALE, Velocity’s Order Acknowledgement, Pro Forma, Velocity’s Limited Warranty (if applicable, and as issued by Velocity), and any supplemental documents annexed hereto by Velocity, contains the complete and entire agreement between the parties as to the subject matter hereof, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether oral or written, with respect to such subject matter.
18. Product Availability. Velocity cannot guarantee the future availability of component parts manufactured or supplied by others that are incorporated into Velocity products.