Terms & Conditions
- Definitions. “Contract” means (a) these Terms & Conditions and (b) any “Quote(s)” or proposal(s) provided by Seller to Customer, (c) any Purchase Order(s) for a Product or Work, Seller’s Packing Slip(s), or Seller’s Invoice(s), and (d) any final specifications and/or drawings that are part of any of the same and are accepted by Customer and Seller that relate to the Product or Work Seller does for Customer, excluding any provisions of any of said documents that are inconsistent with any provisions of these Terms & Conditions. “Seller” means Minnesota Valve & Fitting Company, Inc., a Minnesota S-corporation with principal offices at 321 Lake Hazeltine Drive, Chaska, Minnesota 55318, doing business as Swagelok Minnesota, Swagelok North Dakota, and Swagelok Appleton. “Customer” means the person, business, company, corporation, partnership, or other entity contracting with Seller and/or receiving the benefit of Seller’s Products or Work. “Products” means all goods, items, articles, materials, apparatus, services, and/or equipment that are the subject of this Contract or any revisions thereof. “Work” means Seller’s labor, work, services, and operations whether specified, listed, mentioned, scheduled, or implied in this Contract or any revisions thereof.
- Acceptance. Customer accepts this Contract, including, without limitation, these Terms & Conditions, by any of (a) executing a separate agreement with Seller that incorporates these Terms & Conditions, (b) delivering a Purchase Order or equivalent to Seller for Products or Work with quantities and delivery dates acceptable to Seller, regardless of said Purchase Order’s or equivalent’s inclusion or purported modification or rejection of these Terms & Conditions, (c) accepting delivery of the Products or Work, or (d) paying part or all of the price for the Products or Work, whether prior to delivery or not, whichever of said acceptance methods comes first. Any prior statement of terms by Customer, and any counteroffer or proposed additions or changes to, or supplement of, or rejection of, or other material variance from these Terms & Conditions, are hereby expressly objected to and rejected by Seller. If this Contract is responsive to a prior offer by Customer, then this Contract shall be deemed an acceptance of such offer limited to the material terms and conditions stated in these Terms & Conditions, and any additional or supplemental terms or any material variance from the terms and conditions of this Contract are expressly objected to and rejected. All methods of acceptance incorporate these Terms & Conditions.
- Completion, Delivery & Quantities. A projected time of delivery is ordinarily stated in Seller’s Quote or otherwise communicated to Customer. Any time of delivery stated by Seller is only an estimate, and the time of delivery is subject to change without notice. Seller does not guarantee delivery by any estimated date. Customer must request any required delivery date in writing when it requests Seller’s Quote, which date must be agreed to by Seller in writing to be binding on Seller. If Customer does not request a completion or delivery date, Seller will set a completion or delivery date in accordance with Seller’s general practice. Seller is not responsible for any delays referenced in Section 7 or the consequences of any delays.
- Price, Invoices & Taxes. Seller shall ship the Products F.O.B., Seller’s business location in Chaksa, Minnesota. Or in the case of a drop-shipped Product, Seller shall ship the Product F.O.B. from its supplier’s location. The prices set forth by Seller in writing do not include costs of shipping, insurance, or applicable taxes. Seller ordinarily charges applicable excise, sales, use, or any other such taxes in addition to its stated prices unless Customer provides Seller with satisfactory documentation to support any exemption claim Customer may make. Customer shall indemnify Seller for any unpaid or uncharged tax of the sort referenced in this paragraph where Seller was obligated to collect such tax but Customer contended that it was exempt from such tax.
- Payment Terms. For Customers that have established credit with Seller, payment of amounts shown on Seller’s invoices are due within thirty (30) days from date of shipment shown on Seller’s Packing Slip. Credit is extended solely at Seller’s discretion and is subject to revocation or modification at any time. Cash or prepayment discounts are not allowed, except at the sole discretion of Seller. All payments must be in U.S. dollars. Seller shall have the right of set‑off and deduction for any sums owed. If Customer fails to make timely payment of any amount it owes to Seller, Seller may charge interest on the past due amount at the greater of 18% per annum or the maximum interest rate allowed under applicable law, and in addition Seller may defer further shipments until such payment is made or may, at its option, cancel all or any part of any unshipped portion of an order, all without any liability of any type to the Customer or any third parties. Customer shall be liable to Seller for all costs and expenses Seller incurs if Customer fails to perform any of its obligation pursuant to this Contract, including but not limited to, collection costs, attorney’s fees and all other expenses incurred in connection therewith. Seller shall have a lien on Customer’s property in Seller’s possession until all outstanding balances due by Customer to Seller are fully paid, which lien may extend to property that is subject to an installment contract. Seller’s right shall be considered a security interest under the Uniform Commercial Code and foreclosure thereon shall be in the manner prescribed for security interests under Article 9 of the Uniform Commercial Code as adopted by the State of Minnesota.
- Modification. (a) None of the conditions, provisions, or terms contained in these Terms & Conditions may be added to, modified, removed from, or otherwise altered except by a written instrument that specifically identifies any such changes, states said changes alter these Terms & Conditions, and bears both a signature of an officer of Seller and the date of said signature. Any terms from or statement by Customer that in any way purport to add to, modify, reject, remove from, or otherwise alter any of these Terms & Conditions are not accepted and do not constitute part of the Contract between Seller and Customer unless and only to the extent that Seller expressly accepts any of the same in the manner described in this paragraph 6. (b) Any changes to any other aspect of the Product or Work, including changes in delivery dates, materials, price, requirements, quantities, and/or specifications, will be effective only when accepted in a written instrument issued by Seller to Customer, and may result in a fee (i.e. re-stocking or re-calibration).
- Force Majeure. Seller shall not be liable for any delay in or impairment of performance resulting in whole or in part from catastrophic events, labor disruptions, shortages, inability to procure product, supplies or raw materials, severe weather, war, acts of terrorism, civil unrest, epidemics, governmental lockdowns, acts of God, or any other circumstances or other cause beyond the control of Seller. In the event that such occurrences prevent or interfere with Seller’s ability to complete its Products or Work, Customer shall accept as full and complete fulfillment of the order and the Contract such portion as Seller is able, under the circumstances, to procure and deliver in accordance with the same.
- No Third Party Benefit. The provisions stated above are for the sole benefit of the parties hereto and confer no rights, benefits or claims upon any person or entity not a party hereto. Seller and Customer are not engaged in a partnership, joint venture, or any other such relationship. Neither party may bind the other party to any obligations without the other party’s prior written consent.
- Risk of Loss. Notwithstanding any agreement to pay freight or other transportation charges, the risk of loss or damage passes to Customer on Seller’s delivery of the Product to the common carrier for shipping to Customer. Seller is not responsible for any damage to any Product that occurs in transit, and Customer’s sole remedy is to file a claim with the carrier. In the event that Customer ships any equipment or materials to Seller in connection with the Product or Work, the risk of loss or damage for such equipment or materials shall remain with Customer until Seller receives the same from Customer.
In all cases title transfers to Customer upon the earlier of Seller’s delivery to the Customer or receipt by the first carrier for transport to the Customer, except that, as described in paragraph 25, title to all intellectual property rights associated with the Products and Work remains with Seller or Seller’s suppliers.
- Shipping Charges. Seller will ship Products via a common carrier of Seller’s choice, unless Customer otherwise timely directs in writing and Seller accepts said directions. Customer is responsible for all costs associated with shipping.
- Termination-Suspension. Seller may at any time terminate this Contract or suspend, delay or interrupt all or any part of the Work or any shipment hereunder. If Customer terminates this Contract, or asks Seller to suspend, delay or interrupt all or any part of the Work or shipment, for any reason other than breach by Seller, Customer will pay Seller for all costs previously incurred by Seller in good faith in connection therewith (including, without limitation, Seller’s inventory of Swagelok products, third party products and other raw materials purchased or held for the Products or Work), plus a reasonable allowance for overhead and profit, but not to exceed the total Contract price. If Seller is authorized to resume the Work or shipment, an equitable adjustment will be made to the Contract price and/or delivery schedule, as appropriate.
- Limited Warranties and Exclusion. The only warranty available to Customer for any Swagelok Product will be The Swagelok Limited Lifetime Warranty that is available at www.swagelok.com. Seller assumes no responsibility under The Swagelok Limited Lifetime Warranty, including for any post-sale technical support or warranty repair obligations; however, at Seller’s discretion, Seller may assist Customer in processing warranty claims.
- Disclaimer of Unstated Warranties. THE LIMITED WARRANTIES STATED ABOVE ARE THE ONLY WARRANTIES APPLICABLE TO THE CONTRACT AND THE TRANSACTIONS BETWEEN SELLER AND CUSTOMER. SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE, AND NON -INFRINGEMENT OF PROPRIETARY RIGHTS, AND ALL SUCH AND OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED.
- No Liability for Infringement. Seller makes no warranty, express or implied, against any claims for infringement of any patents, copyrights, trade secrets, service marks or trademarks, or any other intellectual property rights associated with any Products or Work, and Seller shall not be responsible to Customer for or on account of any such claim or liability. Customer shall indemnify Seller for any loss or damages, including, without limitation, attorney’s fees and costs of defense, arising from or related to any third party claims of any such patent, copyright, trade secret, service mark or trademark, or any other intellectual property infringement.
- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY UPON BREACH OF THIS CONTRACT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF INFORMATION, DATA, OR PROFITS, THE COST OF PROCURING SUBSTITUTES GOODS OR SERVICES, OPPORTUNITY COSTS, OR FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE USE OF INABILITY TO USE THE PRODUCTS EVEN IF SELLER WAS ADVISED OF A POSSIBLE CLAIM FOR SUCH DAMAGES.
- Indemnity. Customer agrees that Seller will not be liable for, and Customer will indemnify and hold Seller, and Seller’s shareholders, directors, officers, employees, agents and representatives harmless from, any loss, cost, damage or expense, including reasonable attorney’s fees, resulting from (a) any pre-existing damage to Customer’s property under Seller’s care, custody or control, (b) any bodily injury to any person or damage to any property caused by or resulting from the negligence or intentional misconduct of Customer, or (c) any negligence, intentional misconduct, or breach of this Contract by Customer. Customer states and warrants that it has sufficiently investigated and approved Seller’s processes and applications and assumes full responsibility for any alteration or damage to Products during or resulting from Seller’s application process. Seller shall reimburse Customer only for any damage to Customer’s property due to Seller’s negligence or intentional misconduct in the course of its Work under the Contract. Customer expressly indemnifies Seller for any third party liability, or claims resulting from the Products or Work except to the extent caused by Seller’s negligence, intentional misconduct, or breach of this Contract.
- Dispute Resolution. Before commencing any litigation, Customer and Seller will attempt in good faith to promptly resolve any dispute between them by negotiations between representatives who have authority to settle the dispute. If unsuccessful, Customer and Seller will then attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses shared equally between Customer and Seller. Any dispute not resolved by negotiation or mediation then may be submitted to a court of competent jurisdiction in accordance with these Terms and Conditions. Customer and Seller agree that this is the exclusive procedure for the resolution of all disputes between us.
- Choice of Law, Venue and Waiver. The Contract and all transactions between Seller and Customer shall be construed and interpreted in accordance with the laws of the State of Minnesota, USA to the exclusion of the conflicts-of-laws provisions thereof. Customer and Seller agree that venue for any legal action related to or arising from the Contract and said transactions shall be in the Minnesota District Court for Carver County, Minnesota or the Federal District Court for the District of Minnesota. The parties stipulate to personal jurisdiction in Minnesota. The failure of Seller to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by Seller. Seller and Customer waive the right to trial by jury in any litigation. The reasonable fees and expenses of the prevailing party in any litigation shall be paid by the non-prevailing party.
- Survival of Obligations. All of the provisions of this Contract are separable, so if any provision of this Contract is held to be ineffective by a court of competent jurisdiction, the remaining provisions of this Contract shall remain in full force and effect. Any term or condition intended by its plain meaning to continue after termination of this Contract shall survive after termination.
- Assignment. Customer shall not assign any order or any interest therein without the prior written consent of Seller. Any actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order upon notice to Customer.
- Obligations Upon Transfer. If Customer delivers, sells, or transfers any of the Products to any third party, Customer shall provide such third party with a copy of these Terms & Conditions and all specifications, manuals, and written information provided to Customer pertaining to the Products.
- Export Program. Customer acknowledges that the goods, software, technology/technical data, and/or services provided by Seller are subject to U.S. export control laws and regulations and that such laws and regulations may impose restrictions on the sale, transfer, use, importation, exportation, re-exportation, or disposition of such goods, software, technology/technical data and/or services by Customer. Customer further acknowledges that such laws and regulations may impose reporting or other requirements on Customer. Customer agrees to comply with all applicable U.S. export control laws and regulations in connection with the performance of its duties and responsibilities under this Contract. Upon request by Seller, Customer further agrees to furnish complete and accurate information to Seller regarding the intended application, end user, end use, destination, and/or other details as may be required for the proper exportation of the goods, software, technology/technical data and/or services from the United States.
- Return of Goods. FACTORY SPECIALS (noted per line item) are non-cancelable and non-returnable items. Standard items may be approved for return if items are in the original packaging at a 20% restocking charge. Credit invoices will be available as a credit memo only. No credit will be greater than 10% of the initial order quantity and must be used within 12 months of the issue date. All claims and shortages must be reported within 10 days of receipt of shipment.
- Intellectual Property Rights. Customer acknowledges that the Products and Work and all of the components, concepts or ideas, designs, drawings, maintenance requirements, parts lists, plans, and specifications that are a part of, or that are related to, any of the Products or Work, and all documentation related thereto, whether in electronic or printed form, are the valuable and proprietary intellectual property of Seller. Customer may use the Products, Work, and documentation related thereto for the purpose of installing, maintaining, and operating the Products or Work. However, Customer does not acquire any other rights in or to the Products or Work, any of their components and other qualities listed above, or any of the documentation related thereto, including, without limitation, any ownership or title in or to the Products’ or Works’ intellectual property. Without limiting the generality of the foregoing, Customer does not acquire any rights to improve, develop derivatives of, or fabricate or reproduce any of the Products or Work, in whole or in part, and Customer will not release any of the documentation related to the Products to any third party. Seller retains all ownership, including, without limitation, all patent, copyright, trademark or service mark, licensing, and other intellectual property rights, in the Products or Work, any of their components and other qualities listed above, and any of the documentation related thereto.
Products incorporating third party software or firmware may be subject to Customer’s acceptance of separate license agreements with the software or firmware owners, with no rights to use, sublicense, disclose, disassemble, decompile, reverse engineer or otherwise modify the software or firmware except as may be expressly permitted by those license agreements.
- Complete Agreement. Except for changes made in accordance with Section 6 herein, (a) these Terms & Conditions are the complete, final and entire statement of the conditions, provisions, and terms stated herein and supersede and replace any previous version hereof that may have been, or that may be, in effect between Seller and Customer, and (b) the other provisions of the Contract contain the complete, final and entire agreement of the parties hereto with respect to the subject matter of said other Contract provisions and supersede any and all prior agreements and understanding between the parties with respect to the same. These Terms and Conditions are binding upon, and shall inure to the benefit of, each of the parties and their successors and permitted assigns.