Terms & Conditions

CD3 General Benefit Terms and Conditions

Contact: StopAIS@CD3Systems.com

Applicability. These Terms and Conditions including the terms on the reverse side (“Agreement” or “Terms”) are the only terms that govern the sale of the CD3 Unit(s) and related components (“CD3 Unit(s)”) by CD3, General Benefit Corporation (“Seller”) to the Buyer named on the reverse side (“Buyer”). These Terms prevail over any terms and conditions of purchase submitted by Buyer.

Shipping Terms & Taxes.

1. 1. Seller will deliver the CD3 Unit(s) FCA Seller’s facility in Princeton, Minnesota (INCOTERMS 2010) (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such CD3 Unit(s). The cost of shipping and insurance (if requested by Buyer) will be prepaid by Seller and added to the invoice.
   2. The Price does not include shipping charges, related insurance costs and taxes. Seller will estimate shipping, insurance and applicable taxes on the reverse side; however, Buyer shall be responsible for all such charges, costs and applicable taxes regardless of such estimate.
   3. The Buyer of CD3 Unit(s) must receive shipment within 120 days from signing the Agreement. Seller shall not be liable for any delays, loss or damage in transit.
   4. The Buyer must provide Seller any applicable custom graphic files (for any custom wrap of the CD3 Unit(s)) within 14 days of executing a purchase order for any such CD3 Unit(s); any delay thereof by Buyer shall extend the above -referenced shipment receipt date.by the same number of days so delayed. =
2. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the CD3 Unit(s) at the Delivery Point. As collateral security for the payment of the purchase price of the CD3 Unit(s), Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the CD3 Unit(s), wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Minnesota Uniform Commercial Code.
3. Inspection and Rejection of Nonconforming CD3 Unit(s).
4. Buyer shall inspect the CD3 Unit(s) within two business days of receipt by Buyer (“Inspection Period”). Buyer will be deemed to have accepted the CD3 Unit(s) unless it notifies Seller in writing of any Nonconforming CD3 Unit(s) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming CD3 Unit(s)” means only the following: product shipped is materially different than identified in this Agreement.
5. If Buyer timely notifies Seller of any Nonconforming CD3 Unit(s), Buyer shall give Seller written notice stating in reasonable detail why the CD3 Unit(s) is Nonconforming. If Seller agrees with such determination, Seller shall have a reasonable amount of time from the receipt of such notice to fix or otherwise make such CD3 Unit(s) conforming.
6. Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming CD3 Unit(s). Except as provided under Section 4(b), Buyer has no right to return any CD3 Unit(s) purchased under this Agreement to Seller.
7. Price. Buyer will purchase the CD3 Unit(s) at the price (the “Price”) set forth in this Agreement. If the Price should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased price were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased price..
8. Payment.

1. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Buyer shall make all payments hereunder by wire transfer/check and in US dollars.
2. Buyer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer will reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
3. Buyer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

Buyer Representations and Warranties. Buyer represents and warrants to Seller that it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement. Buyer also represents and warrants that the execution of this Agreement by its representative whose signature is on this Agreement has been duly authorized by all necessary action of the Buyer.

1. Limited Warranty. The Buyer agrees to the terms of the Limited Warranty set forth in Exhibit A attached to this Agreement.

1. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. FURTHER, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.

1. Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, regulations and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.

1. Indemnification. Buyer shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, claims, actions, judgments, settlements, interest, awards, penalties, fines, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party and arising out of or resulting from any claim of a third party or Seller arising out of or occurring in connection with the products purchased from Seller or Buyer’s negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.

1. Insurance. During the term of this Agreement and for a period of three (3) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, property insurance against loss, theft, and damage in an insured amount of full replacement value of such CD3 Unit(s); and comprehensive general liability insurance in an amount no less than $2,000,000. On or before the delivery date, and at such other times as Seller may request, Buyer shall provide Seller with a certificate of insurance evidencing the maintenance of the property insurance and liability insurance. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.

1. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Customers may use CD3 System use data for presentations.

1. Intellectual Property Rights. Buyer acknowledges and agrees that any and all of Seller's intellectual property rights in the CD3 Unit(s) including any derivative idea, invention or innovation, whether registered or unregistered other than Buyer affixed trademarks or logos (“IP Rights”) are the sole and exclusive property of Seller. Buyer shall not acquire any ownership interest in any of Seller's IP Rights under this Agreement. If Buyer acquires any rights in any IP Rights in or relation to any CD3 Unit(s) including any rights in any trademarks, derivative works, related inventions or ideas, such rights are deemed and are hereby irrevocably assigned to Seller without further action by either of the parties.

1. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and addressed to the other party at its address set forth on the reverse side of this Agreement (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.

1. No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

1. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the internal laws of the State of Minnesota.

1. Force Majeure. The Seller is not responsible for any failure or delay in performing this Agreement if caused by acts or circumstances beyond the reasonable control of Seller.

1. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

1. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

1. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

1. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

1. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

1. Survival. Provisions of these Terms which by their nature should apply beyond and remain in force after any termination or expiration of this Agreement, include, but not limited to, the following provisions: Limited Warranty, Limitation of Liability, Indemnification, Insurance, Confidential Information, Intellectual Property Rights, Governing Law, and Survival.