THE BERGQUIST COMPANY
Terms and Conditions
The following terms and conditions shall apply to each Buyer's order for products and services from THE BERGQUIST COMPANY (“BERGQUIST”) and shall constitute the entire agreement between the parties. These 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. Additional or different terms and conditions of purchase printed on or referenced by the Buyer's order or any other Buyer 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 or referenced by 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 from Buyer, BERGQUIST will supply products at the price stated in BERGQUIST’s quotation, or if no quotation exists, then as stated 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 a BERGQUIST-approved cancellation or revision of an order, Buyer shall pay BERGQUIST all costs reasonably and necessarily incurred in reliance upon Buyer’s order(s) and/or forecasts 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. Standard 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. at any time in its sole discretion without advance notice to Buyer.
4. Late Payment. BERGQUIST reserves the right to charge Buyer interest at the rate of 1.5% per month or the maximum legal rate, whichever is less, for any overdue payments due to BERGQUIST by Buyer. Buyer shall also pay all collection costs incurred by BERGQUIST, including, but not limited to, court costs and reasonable attorneys’ fees, if Buyer's 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 any Buyer’s 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. Product Specifications. BERGQUIST may modify its product specifications at any time without notice to or consent of BUYER, provided such change does not affect the form, fit, or function of the products. Any request by BUYER to modify BERGQUIST’s product specifications must be approved by BERGQUIST in writing.
7. 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.
8. 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, or for any shipments received by Buyer up to three (3) business days prior to the scheduled delivery date.
9. Shipments. All deliveries hereunder to destinations in the United States, Canada or Mexico will be F.O.B. BERGQUIST’s plant. All deliveries hereunder to destinations other than the United States, Canada or Mexico will be EX WORKS BERGQUIST’S plant, Incoterms 2000. All deliveries will be packed in BERGQUIST’s standard shipping packages and will be made via a carrier selected by Buyer, at its option. If Buyer does not designate a carrier, BERGQUIST will select the carrier and ship, freight collect, to Buyer. In all such cases, title and risk of loss or damage will pass to Buyer upon BERGQUIST’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.
10. Inspection. Unless Buyer notifies BERGQUIST in writing within thirty (30) days from the date of delivery 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. Certain products of BERGQUIST are shipped at a piece part level and are subject to BERGQUIST’s standard counting and measurement tolerances; BUYER may not reject these products for minor deviations in quantity falling within such tolerance margins.
11. 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.
12. 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.
13. Fair Labor Standards Act. BERGQUIST certifies that the products furnished hereunder have been or will be produced in compliance with the Fair Labor Standards Act, as amended, and regulations and orders of the United States Department of Labor issued thereunder.
14. 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.
15. Intellectual Property. BERGQUIST is and shall remain the sole, exclusive owner of its proprietary information and all intellectual property rights contained therein. No license, conveyance or disclosure of any such rights to BUYER is granted, implied or required hereunder, other than a limited right for BUYER to use BERGQUIST’s intellectual property solely to incorporate the BERGQUIST product(s) which contain such intellectual property into BUYER’s products to sell such BUYER products.
16. 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, costs, damages, loss and expense which BERGQUIST may incur or suffer as the result of Buyer’s failure or omission to do so.
MEDICAL APPLICATIONS: In connection with any anticipated use of products by Buyer in medical applications, Buyer acknowledges and agrees that: (a) BERGQUIST’s products are manufactured under normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain medical applications. It is the sole responsibility of persons contemplating
medical uses of BERGQUIST’s products to comply with all applicable laws, regulations, codes and standards, including but not limited to the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration. BERGQUIST’s products have not been designed, manufactured, tested or qualified for use in certain medical applications (including life support systems) and BERGQUIST has not sought or received any rulings from the FDA or any other federal, state, or local government agency as to the safety, effectiveness or appropriateness of its products for such applications. Persons intending to evaluate or to use BERGQUIST’s products for medical purposes must rely on their own medical and legal judgment without any representation on BERGQUIST’s part.
(b) Buyer will indemnify, defend, and hold harmless BERGQUIST and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorneys fees) arising out of or based upon any bodily injury (including death) or property damage arising from the incorporation of BERGQUIST’s products as part of any other or further product made by Buyer or Buyer’s immediate or ultimate customers for medical applications, including without limitation cardiac pacemakers, defibrillators, electrodes, leads, and programmers, and components therefor.
BERGQUIST shall give Buyer prompt written notice of any such claim and shall cooperate in the defense of such claim at Buyer’s expense. Buyer will indemnify and hold BERGQUIST harmless for any and all liabilities, costs, damages, loss and expense 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 hold BERGQUIST harmless for any and all liabilities, costs, damages, loss and expense 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, costs, damages, loss and expense 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.
17. Confidentiality. The Parties agree to protect and keep any Confidential Information disclosed by one Party hereto to the other Confidential and to not disclose such Confidential Information to third parties without obtaining the other Party’s prior written consent, except as may be required by law or court order.
18. 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.
19. Severability. If any provision of these terms and conditions or application thereof, is found by a court of competent jurisdiction to be invalid or unenforceable by law, the invalidity of such provision shall not affect the validity of the remainder of these terms and conditions and all such provisions will remain valid and in full force and effect.
20. Governing Law. The laws of the State of Minnesota shall determine the validity, enforceability and interpretation of all orders as well as these terms and conditions. Any controversy arising hereunder which the parties cannot resolve by negotiation with one another shall be heard exclusively in a court of proper jurisdiction located in Hennepin County, Minnesota, and Buyer submits, consents and waives objection to exclusive 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 applicable U.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 any Buyer 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 any 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 any Buyer 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.
21. Terms. These terms shall continue to be effective between the parties even after all obligations hereunder, or under any agreement formed pursuant to any quotation given to Buyer, have been performed.
22. Change. BERGQUIST reserves the right to schedule qualified equipment to manufacture its products, introduce the use of qualified calibration equipment to manufacture and/or test its products, to utilize qualified manufacturing facilities interchangeably, use inspected and qualified tooling, and use approved suppliers in manufacturing its products, without customer notification as long as the changes do not affect applicable product specifications.
BERGQUIST warrants that the products and services furnished to Buyer in the form provided 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 (1) YEAR, provided the products are utilized within their applicable shelf life. 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, the repair or replacement of the products or performance of the services again. BERGQUIST shall have no liability or 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. No product may be returned to BERGQUIST without BERGQUIST's prior consent. Before returning a product to BERGQUIST, Buyer must 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.
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.
LIMITATION ON DAMAGES: UNDER NO CIRCUMSTANCE SHALL BERGQUIST BEAR ANY LIABILITY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF BREACH OR 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. FURTHERMORE, 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.