Terms

          Standard Terms and Conditions  

   (e-commerce – Petroleum Equipment) v. 1

 

  1. Applicability. These Standard Terms and Conditions (e-commerce – Petroleum Equipment) (Terms and Conditions”), shall apply with respect to any document (electronic or otherwise) issued by, or on behalf of, CHS In (Seller”) applying or incorporating these Terms and Conditions by reference (“Sales Confirmation”). These Terms and Conditions and the applicable Sales Confirmation are collectively referred to herein as the “Agreement”, and constitute the full and complete agreement and understanding of Seller and the buyer referenced in the Sales Confirmation (“Buyer”) with respect to the subject matter described in this Agreement, and supersedes any and all prior discussions agreements or dealings between the Buyer and Seller relating thereto. No terms or conditions in Buyer’s purchase orders or other forms or communications with Seller shall apply, even if Seller delivers goods identified therein. Trade custom, trade usage and past performance are superseded by the terms of this Agreement. Unless otherwise defined herein, all capitalized terms used in these Terms and Conditions will have the meaning identified in the Sales Confirmation.

 

  1. Purchase and Sale. Buyer agrees to purchase and take delivery from Seller of the goods (“Goods”) identified on the Sales Confirmation, and Seller agrees to sell to Buyer, the quantity of Goods identified in the Sales Confirmation on the terms and conditions set forth in this Agreement.

 

  1. Delivery of Goods. Unless otherwise specifically identified on the Sales Confirmation, Seller shall arrange for transportation of the Goods to Buyer on an F.O.B. basis to the delivery location identified on the Sales Confirmation (“Delivery Point”), and Buyer shall reimburse Seller for all costs incurred with respect to shipment of the Goods to the Delivery Point. Unless otherwise expressly provided herein, this Agreement does not establish or guarantee any specific cost or price variables with respect to shipping of the Goods, including, but not limited to, taxes, freight, application fees, surcharges or extra handling fee The Goods will be packaged and shipped using Seller’s standard methods for packaging and shipping such Goods.  Buyer shall provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.  Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.  If, for any reason, Buyer fails to or is unable to accept delivery of any of the Goods upon arrival at the Delivery Point: (i) the Goods will be deemed to be delivered, (ii) risk of loss for the Goods will pass to Buyer, and (iii) Seller, at its option, may store the Goods until Buyer picks them up, and Buyer shall be responsible for all related costs and expenses (including, without limitation, storage costs and insurance). Seller will use commercially reasonable efforts to deliver Goods prior to any delivery dates for Goods identified on the Sales Confirmation, provided, however, that such dates are estimates only. Seller shall not be liable for any delays, loss or damage caused by suppliers or shippers of the Goods, or for any damage incurred while in storage.

 

  1. Title and Risk of Loss. Title and risk of loss with respect to the Goods passes to Buyer upon delivery of the Goods.

 

  1. Inspection and Rejection of Non-Conforming Goods. Buyer shall inspect the Goods after receipt thereof. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-Conforming Goods (defined below), and furnishes written evidence or other documentation as may be required by Seller, within twenty-four (24) hours after delivery thereof.  “Non-Conforming Goods” means only the following: (i) the Goods are different than the Goods identified in the Sales Confirmation, or (ii) the label or packaging of the Goods incorrectly identifies its content  If Buyer timely notifies Seller of Non-Conforming Goods in accordance with this Section, Seller shall, in its sole discretion: (I) replace such Non-Conforming Goods with conforming Goods, or (II) credit or refund the price for such Non-Conforming Goods, after return of the Non-Conforming Goods to Seller or Seller’s designee. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Goods to Seller’s designated facility. If Seller exercises its option to replace Non-Conforming Goods, Seller shall, after receiving Buyer’s shipment of Non-Conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.  Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the delivery of Non-Conforming Goods.  Except as provided under this Section 5, Buyer has no right to return Goods purchased under this Agreement to Seller.

 

  1. Price. Buyer shall purchase the Goods from Seller at the price (“Price”) identified on the Sales Confirmation.  All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buye Buyer shall be responsible for all such taxes, duties and charges; provided, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Seller reserves the right, in its sole discretion, to cancel any orders containing pricing or quantity errors, with no further obligations to Buyer, even after Buyer’s receipt of Sales Confirmation, shipping notice or other documentation from Seller.  Seller may, at its sole discretion, either contact Buyer for instructions or cancel Buyer’s order and notify Buyer of such cancellation.

 

  1. Payment. Seller will, from time-to-time, deliver to Buyer invoices for amounts payable under this Agreement. Buyer agrees to pay Seller each amount on such invoice, on or before its respective due date identified therein. Unless otherwise specified, all payments must be made in U.S. Doll Buyer will pay a finance charge on all past due amounts at the rate determined in the applicable credit agreement between Seller and Buyer or, if there is no credit agreement between Buyer and Seller, the lesser of 18% per annum or the maximum amount permitted by law. Buyer will be charged a fee for any check or other form of payment returned due to insufficient funds. Payments received from Buyer may be applied in such manner and order as Seller, in its sole discretion, determines. Seller may, in its sole discretion, extend a line of credit to Buyer, which may be withdrawn or modified by Seller at any time. ENTERING INTO THIS AGREEMENT SHALL NOT CONSTITUTE APPROVAL OF A LINE OF CREDIT FOR BUYER.

 

  1. Impairment. Buyer agrees to provide such financial statements or other information as may be reasonably requested by Seller from time-to-time to review Buyer’s creditworthiness or ability to perform its obligations hereunde If Buyer’s payments under this Agreement or any other agreement with Seller are in arrears, or Seller determines, in its reasonable judgment, that Buyer’s creditworthiness or ability to fully perform its obligations under this Agreement are impaired or unsatisfactory, then Seller may suspend performance of its obligations under this Agreement until such time as Buyer makes full advance payment of the Price or provides security satisfactory to Seller. If such advance payment or security is not delivered by Buyer to Seller within three (3) days after a demand therefor, Seller may, at its option, declare Buyer in Default (defined in Section 10) of this Agreement.

 

  1. Term. This Agreement is effective commencing on the Effective Date in the Sales Confirmation and, unless earlier cancelled or terminated pursuant to the terms of this Agreement, shall continue until both final delivery of Goods hereunder and final payment to Seller of all amounts hereunder have occurred.

 

  1. Default. The occurrence of any of the following will constitute a “Default” under this Agreement: (i) Buyer’s failure to perform any obligation when required under this Agreement (including, without limitation, payment of an amount when due); (ii) Buyer’s failure to take delivery of the entire Quantity of Goods when tendered by Seller hereunder; (iii) Buyer’s default under any other agreement with Seller; or (iv) Buyer becomes insolvent, files for bankruptcy or has a petition for bankruptcy filed against it. Upon a Default, Seller may, at its option, exercise any one or more of the following remedies: (I) cancel all or any part of this Agreement, and recover from Buyer all damages and other amounts (including, without limitation, storage charges) available under this Agreement and applicable law; (II) offset amounts owed to Buyer under this Agreement or any other agreement against Buyer’s obligations to Seller under this Agreement or any other agreement; (III) recover from Buyer all costs incurred to enforce this Agreement, including, without limitation, collection fees, attorney’s fees and court costs; and (IV) pursue such other rights and remedies available under this Agreement, at law or in equity.

 

  1. Limited Warranty. Seller warrants that Goods manufactured by Seller hereunder, exclusive of Third Party Product (defined below) will, at the time the title and risk of loss of Goods passes to Buyer: (a) be free and clear of all liens and encumbrances, and (b) meet all specifications set forth in the Sales Confirmation. Items manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods, and are not covered by the foregoing warranty. With respect to Third Party Product, Seller agrees to assign to Buyer, to the extent assignable by Seller, all warranties issued by the original manufacturer of such Third Party Product. Any Goods determined by Seller, after inspection thereof, to not conform with the warranties set forth in this Section shall be referred to herein as “Defective Goods”. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTY OF MERCHANTABILITY, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PART BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING OUT OF A BREACH OF WARRANTY UNDER THIS AGREEMENT IS LIMITED TO ONE OF THE FOLLOWING REMEDIES, DETERMINED AT SELLER’S OPTION: (A) FOR SELLER MANUFACTURED GOODS, EXCLUSIVE OF THIRD PARTY PRODUCT: (I) REPLACEMENT OF THAT PORTION OF THE GOODS THAT CONSTITUTE DEFECTIVE GOODS , OR (II) REFUND TO BUYER THAT PORTION OF THE PRICE ALLOCABLE TO THE DEFECTIVE GOODS; ; OR (B) FOR THIRD PARTY PRODUCTS, REMEDIES UNDER THE ORIGINAL MANUFACTURER’S WARRANTY, TO THE EXTENT THAT SUCH WARRANTY AND REMEDY MAY BE ASSIGNED BY SELLER TO BUYER.

 

  1. Limitation of Liability. IN NO EVENT WILL SELLER’S CUMULATIVE LIABILITY FOR MATTERS ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL PURCHASE PRICE PAID BY BUYER FOR GOODS DELIVERED HEREUNDER. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR PAYMENT, TO BUYER OR ANY THIRD PARTY, OF ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMGES, INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS, OR BUSINESS INTERRUPTION.

 

  1. Claim Period. Unless a shorter period is required under this Agreement or under the original manufacturer’s warranty with respect to Third Party Products (in which case such shorter period will apply), all claims must be made by Buyer within seven (7) days after delivery of the Goods to which the claim relates and before any part of the Goods have changed from its original condition, organization, grouping or location. Buyer’s failure to give Seller written notice of any claim within the applicable time period shall constitute an absolute and unconditional waiver of such claim. In no event shall Buyer commence any action under this Agreement later than one year after the event giving rise to such action.

 

  1. Software. Certain Goods sold under the Agreement may come installed with software (“Installed Software”) owned or licensed by a third party to Seller (“Original Licensor”).  To the extent that Seller is permitted under applicable agreements with the Original Licensor(s) of the Installed Software, Seller hereby grants Buyer a paid-up, non-exclusive, perpetual, irrevocable, royalty-free license to use such Installed Software.  Rights of Buyer with respect to the Installed Software hereunder are subject to the terms and conditions set forth in the license issued to Seller by the Original Licensor(s) with respect to the Installed Software. Buyer agrees to install all updates, upgrades, modifications and subsequent releases of Installed Software made available by Seller or the Original Licenso  To the extent authorized under the license to Seller by the Original Licensor, Seller shall assign to Buyer rights it may have with respect to any warranty issued by the Original Licensor with respect to the Installed Software.

 

  1. PCI Compliance. Buyer represents, warrants and covenants that, in the event any of the Goods provided hereunder relates to or are used in payment service applications, or Buyer handles or has access to cardholder or authentication data in connection with the Goods provided hereunder, Buyer: (i) will at all times comply with Payment Card Industry (PCI) Data Security Standards (DSS), Payment Applications (PA) Data Security Standards (DSS), the PIN Transaction Security Standards (PTS) and all policies, procedures and guidelines established by issuers of payment cards; (ii) will secure and destroy, and shall be responsible and liable for securing and destroying, any and all collected sensitive materials in its possession, and (iii) shall ensure that installations and repair of the Goods are performed in accordance with the manufacturer’s installation and implementation guide. Buyer agrees to indemnify Seller from and against any and all claims, causes of action, damages, liabilities, fines and expenses (including, without limitation, attorney’s fees and costs) suffered or incurred by Seller to the extent arising out of Buyer’s breach of its obligations under this Section.

 

  1. Buyer’s Representation. Buyer represents that it is familiar with and knowledgeable about the allowable uses for the Goods and that all Goods purchased hereunder shall be used in a manner consistent with the Goods’ intended uses and all applicable law. In no event shall entering into this Agreement obligate Seller or Buyer to enter into future agreements or transactions for the purchase or sale of Goods from the others.

 

  1. Opinions. Seller or Seller’s agents may provide to Buyer (upon Buyer’s request or otherwise) certain recommendations, interpretations, opinions or advice (“Opinions”). Seller does not warrant the accuracy, correctness or completeness of such Opinion Buyer assumes full responsibility for any use of, or reliance upon, such Opinions and releases and agrees to indemnify, defend and hold harmless Seller and Seller’s agents from any liability arising or resulting from Buyer’s reliance use of or reliance upon such Opinions.

 

  1. Indemnity. Buyer shall defend, protect, indemnify, and save Seller, its affiliates, suppliers, and their respective officers, directors, and employees harmless from and against any and all claims, demands, lawsuits, causes of action, strict liability claims, penalties, fines, administrative law actions and orders, damages, liabilities, expenses (including without limitation, attorneys’ fees and expenses) and costs of every kind and character due for any reason whatsoever, including without limitation personal injuries, death, damage to property, or damage to the environment, regardless of whether such harm is to Buyer, Seller, the employees or officers of either or any other person: (i) arising from or relating to a breach by Buyer of any of its obligations, undertakings, representations or warranties under this Agreement, or (ii) except to the extent caused by the gross negligence or intentional conduct of Seller, arising out of or in any way incident to the possession, use, operation, maintenance, transportation, handling, or disposal of the Goods, at or after the time Risk of Loss for such Goods passes to Buyer hereunder (regardless of whether by Buyer, its agents, subcontractors, customers or others).

 

  1. Force Majeure. Seller shall not be responsible or liable for any delay or failure to deliver any or all of the Goods if occasioned by: act of God; fire; flood; embargo; act of war; explosion; accident; breakdown of machinery or equipment; delay or failure of Seller’s supplier to provide Goods (whether due to allocation, breach of contract, act of God or otherwise); shortage of or inability to obtain fuel, power, raw materials, equipment, transportation, or the Goods itself (without litigation and at usual prices or from usual sources); good faith compliance with any law, regulation, standard, order, rule or recommendation made by any governmental authority; strike or labor controversy (Seller shall not be required to settle any labor matter against its own best judgment); any cause or circumstance beyond Seller’s reasonable control; or any other cause or circumstance, whether similar or dissimilar to the forgoing, which makes impracticable the production, transportation, performance or delivery of the Goods,  or any material used in or in connection with such production, transportation, performance or delivery (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Seller may, at its option, reduce the quantity of Goods deliverable hereunder (and allocate Seller’s supplies of such Goods among Seller’s customers) in a manner that Seller, in its sole discretion, deems reasonable. In no event will Seller be obligated to purchase additional Goods to replace quantities of Goods not delivered, due to a Force Majeure Event.

 

  1. Confidentiality. Buyer agrees to keep confidential all information contained in this Agreement and all other information, specifications, or data furnished by or on behalf of Seller or prepared by Buyer in connection with this Agreement. The obligation of confidentiality shall not apply to information that is: (i) known by Buyer, without confidentiality obligation, prior to receipt from Seller, (ii) is or becomes public knowledge without fault of Buyer, or (iii) becomes available from a third party that is not subject to a confidentiality obligation. Buyer agrees that the obligations of confidentiality provided herein shall survive acceptance of and payment for the Goods or any part thereof and for a period of three years thereafte

 

  1. Miscellaneous.

 

(a)  Independent Contractor, Licensee.  Buyer and Seller are independent contractors, and not agents, partners, joint venturers, associates or employees of the other. Except as otherwise set forth in this Agreement, no licenses are granted or implied by this Agreement under any patents, patent application, trademarks, copyrights or trade names owned or controlled by Seller or any third party.

 

(b)  Seller’s Remedies. Each remedy of Seller contained in this Agreement is cumulative and not exclusive, and is in addition to all other remedies available to Seller under this Agreement, other agreements between Seller and Buyer, at law or in equity and shall survive termination, cancellation or expiration of this Agreement.

 

(c)   Compliance with Laws. Buyer agrees that it shall fully comply with all applicable federal, state and local laws, rules, regulations and court orders in connection with its use of the Goods provided hereunder.

 

(d)  Assignment, Amendments. This Agreement cannot be assigned by Buyer to any third party. This Agreement may not be amended or modified unless made in a writing signed by both parties hereto.

 

(e)   Survival. All agreements, representations, or warranties of the parties hereunder which expressly or by their nature survive expiration, termination or cancellation of this Agreement, including without limitation Buyer’s indemnification obligations, shall continue in full force and effect following and notwithstanding any expiration, termination or cancellation until they are satisfied or by their nature expire.

 

(f)   Severability. In the event any provision or clause of this Agreement is rendered invalid or unenforceable, the meaning of such provision or clause shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save the provision or clause, it shall be severed from this Agreement with respect to the matter in question and the remainder of the Agreement shall remain in full force and effect.

 

(g)  Conflicts. In the event of a conflict between the Terms and Conditions and the Sales Confirmation, the terms of the Sales Confirmation shall control.

 

(h)   Governing Law.  This Agreement will be governed by the laws of the State of Minnesota, without regard to its conflicts of law provisions.

 

 (i)   Waiver. Except as expressly provided herein, the failure or delay of a party to exercise a right or remedy with respect to conduct of the other party that is in violation of this Agreement will not be construed as a waiver thereof (unless in writing), and will not act as a waiver of any party’s right to exercise a right or remedy for any future breach or wrongful conduct.