Terms & Conditions Relating to the Purchase of Zero-Max Products

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Standard Terms and Conditions

1. Zero-Max, Inc. (“Zero-Max”) reserves the right to change prices at any time prior to its acceptance of Buyer’s firm order. Buyer shall pay for any additional expenses incurred as a result of the Buyer changing specifications or requirements after its order has been accepted. Buyer agrees to pay all excise or other taxes, if any, that may be levied on the products purchased by Buyer or upon or in connection with the manufacture, sale or shipment thereof.
2. Zero-Max will not be liable for failure to perform any order placed, when such failure is due to conditions beyond its control, including but not limited to, fire, flood, strikes or other industrial disturbances, accidents, war, riots, allocations, or freeze rationing orders.  If shipments by Zero-Max are prevented by any condition beyond Zero-Max’s control, the Buyer will reimburse Zero-Max for all commitments of Zero-Max in connection with this order, including the cost of material completed or in process at the time of the occurrence of such condition.
3. Final inspection and acceptance of the material ordered shall be at the Buyer’s plant.  Zero-Max warrants that for a period of  twelve (12) months from date of shipment, it will repair or at its option replace any new product which proves defective in material (if supplied by Zero-Max) or workmanship, or which does not conform to applicable drawings and specifications approved by Zero-Max.  All repairs and replacements shall be F.O.B. factory.  All claims must be made in writing to Zero-Max.  In no event and under no circumstances shall Zero-Max be liable for (a) products lost or damaged in shipment; (b) failures or damages due to misuse, improper installation or abnormal conditions of temperature, dirt, water, or corrosives; (c) failures due to operation, intentional or otherwise, above rated capacities, and (d) non-authorized expenses for removal, inspection, transportation, repair or rework.  ZERO-MAX SHALL NOT BE LIABLE FOR LOST PROFITS, LOST BUSINESS, LOST BUSINESS OPPORTUNITIES, OR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. ZERO-MAX’S MAXIMUM LIABILITY FOR ACTUAL PROVEN DAMAGES, IF ANY, SHALL BE LIMITED TO THE PURCHASE PRICE PAID BY BUYER TO ZERO-MAX FOR THE PRODUCT GIVING RISE TO THE LIABILITY.  THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  THE TERMS OF THIS WARRANTY CONSTITUTE ALL BUYER’S OR USER’S SOLE AND EXCLUSIVE REMEDY, AND ARE IN LIEU OF ANY RIGHT TO RECOVER FOR NEGLIGENCE, BREACH OF WARRANTY, STRICT TORT LIABILITY OR UPON ANY OTHER THEORY.  Any legal proceedings arising out of the sale or use of Zero-Max products must be commenced within eighteen (18) months of the date of shipment.
4. In the event of cancellation of an order by the Buyer, the Buyer shall promptly reimburse Zero-Max for (1) the unit contract price of all completed articles, (2) any unamortized portion of amortizable expense such as for tools, dies, patterns, “Get-ready” and similar items, (3) the percentage of the unit contract price of uncompleted articles which is equal to the percentage of completion, as determined by Zero-Max, including any amounts expended or committed for by Zero-Max in respect of cancellation.  The Buyer shall at its own expense promptly remove all such production materials from Zero-Max’s property, it being understood that if the Buyer shall not so remove such materials within fifteen (15) days after written request from Zero-Max, Zero-Max may remove such materials from its property and store them for the account and at the expense of the Buyer or, in Zero-Max’s sole discretion, dispose of the materials at Buyer’s expense.
5. The sale of the products to Buyer will be made by Zero-Max only under the terms listed here and not under the terms of any purchase order submitted by Buyer, regardless of any provision to the contrary in such purchase order. These Terms and Conditions may not be modified, except in writing and signed by Zero-Max.
6. In the event of the failure of the Buyer to fulfill the terms of payment hereunder or any other stipulations contained herein, Zero-Max may at its election defer shipments until satisfactory performance has been made by the Buyer, or cancel all outstanding orders, and such deferment of shipments or cancellation of orders shall not prejudice any claim for damages Zero-Max may otherwise have against the Buyer.  Zero-Max shall be entitled to recover any expenses, including attorneys’ fees, incurred in efforts to collect payment from Buyer if not paid when due, whether or not legal action is commenced.
7. The Buyer shall indemnify, defend, and hold harmless Zero-Max and its directors, officers, employees, agents, personnel, successors and assigns from and against any and all claims, suits, actions, demands, liabilities, losses, fines and costs of any kind, including but not limited to, reasonable attorney’s fees, expert witness fees and all costs of litigation, arising out of  (a) alleged violation of laws, rules, or regulations in the manufacture of products in accordance with Buyer’s specifications; (b) alleged use of any patented or unpatented inventions which result from the manufacture, use or sale of said articles or materials alone or in combination with other materials, structures, or devices; and (c) any violation of these Terms and Conditions by Buyer.
8. Notwithstanding any other provision herein, the Buyer will, upon the written request of Zero-Max, replace at the Buyer’s expense any material the Buyer furnished to Zero-Max which proves defective, and Zero-Max shall be excused from delivering any products until a reasonable time after the Buyer replaces such defective material with material conforming to applicable specifications.
9. Buyer shall not (nor allow any third party to):  (i) decompile, disassemble, copy or reverse engineer any part of Zero-Max’s products, (ii) remove any product identification, copyright or proprietary notices from copies of documentation provided with Zero-Max products, or (iii) modify or create a derivative work from any part of a Zero-Max product.   
10. All agreements between the parties shall be governed, enforced, and construed under the laws of the State of Minnesota, without regard to its conflict of laws principles. The venue for any action between the parties shall be in Hennepin County, Minnesota, whether or not such venue is or subsequently becomes inconvenient, and the parties consent to the exclusive jurisdiction of any federal or state court located therein.