Terms and Conditions of Sale

THE BERGQUIST COMPANY
Terms and Conditions

The following terms and conditions shall apply to each order for products and services of THE BERGQUIST COMPANY (“BERGQUIST”) and shall constitute the entire agreement between the parties. The terms and conditions may not be varied, and no modification or addition shall be of any force or effect unless specifically accepted by BERGQUIST in writing. Acceptance of orders which contain additional or different conditions of purchase printed on the order or other form shall not be binding upon BERGQUIST unless specifically agreed to in writing by an authorized representative of BERGQUIST. If any conflict exists between the terms and conditions as set forth herein, and those terms and conditions as contained on Buyer’s purchase order, acceptance or other order form, THESE TERMS AND CONDITIONS SHALL SUPERSEDE AND GOVERN.

1. Pricing. Upon BERGQUIST’s acceptance of a written purchase order, BERGQUIST will supply products at the price stated in BERGQUIST’s quotation, or if no quotation exists, then in BERGQUIST’s price list. BERGQUIST reserves the right to revise prices if Buyer has not placed an order for products or services subject to any quotation given to Buyer within thirty (30) days of the date on the quotation. In all other cases, BERGQUIST reserves the right to revise prices at any time without notice prior to the date of shipment of products. Buyer shall pay any extra costs reasonably and necessarily incurred by BERGQUIST as a result of any changes or modifications to specifications requested by Buyer.

2. Cancellation. Buyer may not cancel or revise any order accepted by BERGQUIST without prior written consent of BERGQUIST. Upon cancellation or revision of an order, Buyer shall pay BERGQUIST all costs reasonably and necessarily incurred in reliance upon the initial order received by BERGQUIST, including but not limited to costs relating to work-in-process, unused raw material, and engineering up to the total cost of the purchase order. All such charges will be determined by BERGQUIST in its sole discretion at the time of cancellation or revision by Buyer.

3. Payment. Payment terms are thirty (30) days net from date of invoice. BERGQUIST reserves the right, however, to modify the credit terms hereunder or to require payment in advance or C.O.D. when deemed advisable by BERGQUIST, in its sole discretion.

4. Late Payment. BERGQUIST reserves the right to charge Buyer interest at 1.5% per month or the maximum legal rate, whichever is less, for any payments more than thirty (30) days overdue. Buyer shall also pay collection costs or court costs plus reasonable attorneys’ fees if its account is referred to a collection agency or attorney for collection.

5. Custom Tooling. Unless otherwise agreed in writing, all material, processes, equipment, facilities and custom tooling, including but not limited to dies, molds, patterns and other special equipment, used in the manufacture of products covered by an order shall be and remain the property of BERGQUIST. BERGQUIST agrees to maintain all custom tooling furnished by BERGQUIST in operating condition for its ordinary life, but not more than two years after the completion of the most recent production order.

6. Taxes. In addition to the stated purchase price, Buyer will pay any tax imposed by any federal, state or other governmental authority on the sale of the products and/or services.

7. Delivery. Any delivery schedule which BERGQUIST may provide to Buyer represents a good faith estimate of delivery dates and shall not bind BERGQUIST to anything more than its reasonable efforts to meet such estimates. BERGQUIST will not be liable for any loss or expense (consequential or otherwise) incurred by Buyer as a result of any delay in delivery

8. Shipments. All deliveries hereunder to destinations in the United States, Canada or Mexico will be F.O.B. BERGQUIST’s plant, Incoterms 2000. All deliveries hereunder to destinations other than the United States, Canada or Mexico will be EX WORKS BERGQUIST’S plant. All deliveries will be via a carrier selected by Buyer at its option, or otherwise by Seller, freight collect, to Buyer and will be packed in Seller’s standard shipping packages. In all such cases title and risk of loss or damage will pass to Buyer upon Seller’s delivery of the products to the carrier for shipment to Buyer and no loss or damage will relieve Buyer of any obligation hereunder, including payment for lost or damaged products.

9. Inspection. Unless Buyer notifies BERGQUIST in writing thirty (30) days from the date of shipment of any products that said products are rejected, they will be deemed to have been accepted by Buyer. Buyer must also specify the reasons for the products being rejected in order for the notice of rejection to be effective.

10. Errors. Buyer assumes responsibility for errors in sketches, prints, specifications and samples submitted to BERGQUIST and/or approved by Buyer. BERGQUIST reserves the right to correct clerical or stenographic errors or omissions.

11. Discontinuation. BERGQUIST reserves the right to discontinue providing products or services to Buyer upon Buyer’s failure to perform any material obligation under the terms and conditions set forth herein. Buyer’s obligation to pay all amounts owing to BERGQUIST pursuant hereto will survive any BERGQUIST discontinuation or termination.

12. Fair Labor Standards Act. BERGQUIST certifies that the products furnished hereunder have been or will be shipped in compliance with the Fair Labor Standards Act, as amended, and regulations and orders of the United States Department of Labor issued thereunder.

13. Force Majeure. Neither party shall be responsible for circumstances beyond its reasonable control which make its performance impossible or delay its performance hereunder. To the extent that a party is delayed by such causes, the time to perform will be extended.

14. Indemnification. Buyer agrees to comply with all applicable federal, state and local laws, rules and regulations and to indemnify and save harmless BERGQUIST for and from any and all liabilities, expenses, costs and damages which BERGQUIST may incur or suffer as the result of Buyer’s failure or omission to do so.

Buyer will not use any product, or sell any product to any party for use in connection with or as a “medical device” as defined by federal law. If any product is used or resold for a “medical device” related use, Buyer agrees to defend BERGQUIST against and indemnify BERGQUIST for all liability, loss and expense arising out of, or in connection with, that use.

Buyer shall also indemnify and hold BERGQUIST harmless for any and all liabilities, costs and damages which BERGQUIST may incur or suffer as a result of Buyer’s failure to comply with the terms and conditions stated herein.
Buyer will indemnify and save harmless BERGQUIST for and from any and all liabilities, expenses, costs and damages which BERGQUIST may incur or suffer as the result of any actual or alleged infringement of any patents, copyrights or trademarks arising from the manufacture or sale of products in accordance with patterns, designs, specifications, drawings, directions, technical information, or data furnished to BERGQUIST by Buyer.

15. Confidentiality. BERGQUIST agrees not to disclose to third parties any information regarding Buyer or its business or its customers, or use such information for any purpose other than performing Buyer’s order, without written approval of Buyer.

16. Independent Contractor. BERGQUIST shall at all times act in its own capacity and right as an independent contractor, and nothing contained herein shall be construed to make BERGQUIST an agent or partner of Buyer.

17. Governing Law. The laws of the State of Minnesota shall determine the validity, enforceability and interpretation of this Agreement. Any controversy arising hereunder which the parties cannot resolve by negotiation with one another shall be heard in a court of proper jurisdiction located in Hennepin County, Minnesota, and Buyer submits, consents and waives objection to jurisdiction and venue in such courts.

BERGQUIST’s products and data may be subject to export control laws, restrictions and regulations including but not limited to International Traffic in Arms Regulations (“ITAR”), Export Administration Regulations (“EAR”) and Foreign Assets Control Regulations (OFAC). Buyer shall be responsible for strict compliance with all applicableU.S. export control laws, restrictions and regulations of the United States or foreign agencies or authorities, and, when required by such laws and regulations, shall assume sole responsibility for obtaining a validated export and re-export license or other required authorization required for goods and services delivered under this order. BERGQUIST shall not be liable to Buyer for any failure to provide goods or services as a result of the United States Government’s refusal to grant an export or re-export authorization or its cancellation of an export or re-export authorization, or as a result of anyd subsequent interpretation of U.S. Export control laws and regulations after the date of this order that has a material adverse effect on BERGQUIST’s performance of this order. Buyer shall not export, or transfer for the purpose of re-export, any goods to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any U.S. or foreign law or regulation. Buyer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the goods or services hereunder.

18. Terms. These terms shall continue to be effective until all obligations hereunder or any agreement formed pursuant to any quotation given to Buyer have been performed. [Either party shall, however, have the right to terminate any such agreement at any time without cause upon thirty (30) days’ written notice to the other.]

19. Change. BERGQUIST Company reserves the right to schedule qualified equipment to manufacture our products, introduce the use of qualified calibration equipment to manufacture and/or test our product, to utilize qualified manufacturing facilities inter changeably, use inspected and qualified tooling, and use approved suppliers in manufacturing our products without customer notification as long as the changes do not affect applicable product specifications.

LIMITED WARRANTY

BERGQUIST warrants that the products and services furnished to Buyer shall be free from defects in material and workmanship. The warranty period will be measured from BERGQUIST’s shipment date and is ONE YEAR, except for products with a shelf life of less than one year. In that case, the shelf life period is the warranty period. Bergquist's 5 WIRE TOUCH SCREEN and SURFACE CAPACITIVE TOUCH SCREEN are warranted for TWO YEARS. If a product or service is proven not to have met BERGQUIST’s warranty, then BERGQUIST’s sole obligation and Buyer’s EXCLUSIVE REMEDY will be, at BERGQUIST’s option, to repair or replace the products, perform the services again or refund the amount which Buyer paid for the non-conforming products or services. BERGQUIST has no obligation for any product that has been modified or damaged through misuse, accident, neglect, mishandling, improper maintenance or subsequent modification or alteration by anyone other than BERGQUIST.

THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, RIGHTS, OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. BUYER IS RESPONSIBLE FOR DETERMINING IF A PRODUCT FITS BUYER’S PARTICULAR PURPOSE AND IS SUITABLE FOR BUYER. BERGQUIST BEARS NO LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BERGQUIST SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF DELAY IN BERGQUIST’S PERFORMANCE, OR THE USE OR INABILITY TO USE PRODUCTS OR SERVICES PROVIDED TO BUYER, EVEN IF BERGQUIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BERGQUIST’S CUMULATIVE LIABILITY FOR ANY CLAIM, ACTION OR DAMAGE, WHETHER ARISING IN CONTRACT, TORT OR STRICT LIABILITY, EXCEED THE TOTAL AMOUNT WHICH BUYER PAID FOR THE AFFECTED PRODUCTS OR SERVICES REGARDLESS OF WHETHER THE CONTRACT HAS BEEN BREACHED.

No product may be returned to BERGQUIST without BERGQUIST's prior consent. Before returning a product to BERGQUIST, please contact Bergquist Corporate Headquarters (1-952-835-2322) for a return material authorization number (RMA#) and shipping instructions. BERGQUIST will pay for the return shipment of any defective product. Any replacement products will be shipped at Buyers expense.