1. Definitions. “Contract” means (a) these Terms & Conditions and (b) any “Quote(s)” or proposal(s) provided by Lion Precision to Customer, any Purchase Order(s) for a Product or Work, Lion Precision’s Packing Slip(s), Lion Precision’s Invoice(s), and any final specifications and/or drawings that are part of any of the same and are accepted by Customer and Lion Precision that relate to the Product or Work Lion Precision does for Customer, excluding any provisions of any of said documents that are inconsistent with any provisions of these Terms & Conditions. “Lion Precision” means Motion Tech Automation, LLC, a Delaware limited liability corporation with principal offices at 7166 4th Street N, Oakdale, Minnesota 55128-7082. “Customer” means the person, business, company, corporation, partnership, or other entity contracting with Lion Precision and/or receiving the benefit of Lion Precision’s 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 Lion Precision’s labor, work, services, and operations whether specified, listed, mentioned, scheduled, or implied in this Contract or any revisions thereof.
2. Acceptance. Buyer accepts this Contract, including, without limitation, these Terms & Conditions, by any of (a) executing a separate agreement with Lion Precision that incorporates these Terms & Conditions, (b) delivering a Purchase Order or equivalent to Lion Precision for Products or Work with quantities and delivery dates acceptable to Lion Precision, 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 Lion Precision. 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.
3. Completion, Delivery & Quantities. A projected time of delivery is ordinarily stated in Lion Precision’s Quote or otherwise communicated to Customer. Any time of delivery stated by Lion Precision is only an estimate, and the time of delivery is subject to change without notice. Lion Precision does not guarantee delivery by any estimated date. Customer must request any required delivery date in writing when it requests Lion Precision’s Quote, which date must be agreed to by Lion Precision in writing to be binding on Lion Precision. If Customer does not request a completion or delivery date, Lion Precision will set a completion or delivery date in accordance with Lion Precision’s general practice. Lion Precision is not responsible for any delays referenced in Section 7 or the consequences of any delays.
4. Price, Invoices & Taxes. Lion Precision shall ship the Products F.O.B., Lion Precision’s business location in Oakdale, Minnesota. The prices set forth by Lion Precision in writing do not include costs of shipping, insurance, or applicable taxes. Lion Precision ordinarily charges any applicable excise, sales, use, or any other such taxes in addition to its stated prices unless Customer provides Lion Precision with satisfactory documentation to support any exemption claim Customer may make. Customer shall indemnify Lion Precision for any unpaid or uncharged tax of the sort referenced in this paragraph where Lion Precision was obligated to collect such tax but Customer contended that it was exempt from such tax.
5. Payment Terms. For Customers that have established credit with Lion Precision, payment of amounts shown on Lion Precision’s invoices are due within thirty (30) days from date of shipment shown on Lion Precision’s Packing Slip. Credit is extended solely at Lion Precision’s discretion and is subject to revocation or modification at any time. Cash or anticipation discounts are not allowed. All payments must be in U.S. dollars. Lion Precision 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 Lion Precision, Lion Precision may charge interest on the past due amount at the greater of 11% per annum or the maximum interest rate allowed under applicable law, and in addition Lion Precision 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 therefore. Customer shall be liable to Lion Precision for all costs and expenses Lion Precision 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. Lion Precision shall have a lien on Customer’s property in Lion Precision’s possession until all outstanding balances due by Customer to Lion Precision are fully paid, which lien may extend to property that is subject to an installment contract. Lion Precision’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.
6. 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 an original signature of an officer of Lion Precision 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 Lion Precision and Customer unless and only to the extent that Lion Precision expressly accepts any of the same in the manner described in this paragraph 6 above. (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 Lion Precision to Customer, and may result in a fee (i.e. re-stocking or re-calibration).
7. Force Majeure. Lion Precision 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, acts of God, or any other circumstances or other cause beyond the control of Lion Precision. In the event that such occurrences prevent or interfere with Lion Precision’s ability to complete its Work, Customer shall accept as full and complete fulfillment of the order and the Contract such portion of the goods as Lion Precision is able, under the circumstances, to procure and deliver in accordance with the same.
8. 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. Lion Precision and Customer are not engaged in a partnership, joint venture, or any other such relationship.
9. Risk of Loss. Notwithstanding any agreement to pay freight or other transportation charges, the risk of loss or damage passes to Customer on Lion Precision’s delivery of the Product to the common carrier for shipping to Customer. Lion Precision 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 Lion Precision in connection with the Product or Work, the risk of loss or damage for such equipment or materials shall remain with Customer until Lion Precision receives the same from Customer.
10. Shipping Charges. Lion Precision will ship Products via a common carrier of Lion Precision’s choice, unless Customer otherwise timely directs in writing and Lion Precision accepts said directions. Customer is responsible for all costs associated with shipping.
11. Termination-Suspension. Lion Precision 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 Lion Precision to suspend, delay or interrupt all or any part of the Work or shipment, for any reason other than breach by Lion Precision, Customer will pay Lion Precision for all costs previously incurred by Lion Precision in good faith in connection therewith (including, without limitation, Lion Precision’s inventory of paint, parts and other raw materials purchased or held for the Work), plus a reasonable allowance for overhead and profit, but not to exceed the total Contract price. If the Work or shipment is suspended, delayed or interrupted by Customer for a period of ninety (90) days (unless otherwise agreed by Lion Precision and Customer in writing), Lion Precision may elect to treat this Contract as if Customer had terminated this Contract for reason other than breach by Lion Precision pursuant to the provisions of this paragraph. If Lion Precision is authorized to resume the Work or shipment, an equitable adjustment will be made to the Contract price and/or delivery schedule, as appropriate. The provisions of this paragraph shall survive termination of the Contract.
12. Product Suitability. (a) Different Nations, States, and localities have varying regulations governing sales, construction, installation, and/or use of Products for certain purposes. Lion Precision does not guarantee or assure Customer that its Work or the Products will comply with all of the same, and Lion Precision is not responsible for how the Product is installed or used. Before purchase and use of a Product, Customer agrees to review the Product’s application, local codes and ordinances, all other applicable laws and regulations, and the requirements of any contracts involving the Products, and ensure that the Products, their installation, and their use will comply with the same. Customer shall comply with all applicable laws, rules and regulations relating to the Product. (b) Responsibility for Customer’s product designs and all testing of the suitability of Lion Precision’s Product or Work rest solely with Customer. Lion Precision will ordinarily provide Customer with information, literature and/or samples for testing within a reasonable time after receiving Customer’s written request therefore. (c) Lion Precision does not warrant and is not responsible for any damage to Customer’s or any third party’s devices, equipment, or machinery that includes or is affected by the Product or Work even if caused by or occurring through use of the Product or Work.
13. Liability for Infringement. No provision or interpretation of the Contract shall constitute or be construed as Lion Precision’s 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, and Lion Precision shall not be responsible to Customer for or on account of any such claim or liability. Customer shall indemnify Lion Precision 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.
14. Indemnity. Customer agrees that Lion Precision will not be liable for, and Customer will indemnify and hold Lion Precision harmless from, (a) any loss of use resulting from pre-existing damage to Customer’s property under Lion Precision’s care, custody or control, (b) any demands, claims, suits, losses, damages, costs and expenses arising out of bodily injury to any person or damage to any property caused by or resulting from the negligence of Customer, (c) any loss resulting from damage to Product due to Lion Precision’s application, and/or (d) Lion Precision’s costs and expenses, including, without limitation, its attorney’s fees, related to or arising from any of the same and/or Lion Precision’s defense thereof. Lion Precision is not responsible for any condition in the Product that may be altered or affected by, during or resulting from Lion Precision’s application process. Customer states and warrants that it has sufficiently investigated and approved Lion Precision’s processes and applications and assumes full responsibility for any alteration or damage to Products during or resulting from Lion Precision’s application process. Lion Precision shall reimburse Customer only for any damage to Customer’s Product due to Lion Precision’s negligence in the course of its Work under the Contract.
15. Survival of Obligations. All of the provisions of this Agreement are separable, so if any provision of this Agreement is held to be ineffective by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect.
16. Assignment. Customer shall not assign any order or any interest therein without the prior written consent of Lion Precision. Any actual or attempted assignment without Lion Precision’s prior written consent shall entitle Lion Precision to cancel such order upon notice to Customer.
17. Choice of Law, Venue and Waiver. The Contract and all transactions between Lion Precision 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 Lion Precision 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 Washington County, Minnesota or the Federal District Court for the District of Minnesota, although any party seeking injunctive relief may bring an action for such injunctive relief (and only injunctive relief) in such other Court as may be necessary to secure enforceable injunctive relief. The parties stipulate to personal jurisdiction in Minnesota. The failure of Lion Precision 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 Lion Precision.
18. Limited Warranty and Exclusion. Lion Precision warrants the Products to be free of material defects in materials and workmanship for a period of two (2) years from the date of shipment. Any Products Customer believes to be in violation of this warranty must be shipped to Lion Precision with all shipping costs paid by Customer or offered to Lion Precision for inspection and examination within said two (2) year period. Upon Lion Precision’s examination and if a material defect is found, Lion Precision will, at its sole option, refund the purchase price of, or repair or replace at no charge to Customer, any Products. This limited warranty does not apply to any defects resulting from any action of Customer, including, without limitation, improper installation, interfacing, or repair; unauthorized modification; misapplication; or mishandling (including, without limitation, exposure to excessive current, cold, heat, moisture, outdoor air, or moisture). If no material defect is found upon examination or a Product is not for some other reason within this limited warranty’s coverage, Lion Precision’s service time expended on and off-site will be charged to Customer at Lion Precision’s then standard hourly rates. If an examined Product is found by Lion Precision to be defective due to Lion Precision’s application, Lion Precision’s obligation shall be limited to providing remedial service to repair the defect or, at Lion Precision’s option, to refund the amount of the purchase price paid for the Product to the extent that the Product is damaged or defective and such damage or defect is subject to Lion Precision’s limited warranty. No other remedy exists. Lion Precision will have no further warranty obligation under the Contract if the Product is subjected to abuse, misuse, negligence or accident or if Customer fails to perform any of its duties or responsibilities set forth herein. IT IS UNDERSTOOD AND AGREED THAT LION PRECISION’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE CONTRACT PRICE PAID BY CUSTOMER FOR THE DEFECTIVE PRODUCT, AND UNDER NO CIRCUMSTANCES SHALL LION PRECISION BE LIABLE TO ANY PERSON OR ENTITY FOR ANY CONSEQUENTIAL, DIRECT, EXEMPLARY, INCIDENTIAL, INDIRECT, PUNATIVE SPECIAL, OR STATUTORY 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 LION PRECISION WAS ADVISED OF A POSSIBLE CLAIM FOR SUCH DAMAGES. THE PRICE STATED FOR THE PRODUCT OR LION PRECISION’S WORK IS A CONSIDERATION IN SO LIMITING LION PRECISION’S LIABILITY. Failure to give notice of a warranty claim as specified herein shall constitute a waiver by Customer of all claims of Customer. Customer expressly indemnifies Lion Precision for any consequential damages, third party liability, complications, or claims resulting from the Work.
19. Disclaimer of Unstated Warranties. THE LIMITED WARRANTY PRINTED ABOVE IS THE ONLY WARRANTY APPLICABLE TO THE CONTRACT AND THE TRANSACTIONS BETWEEN LION PRECISION AND CUSTOMER. LION PRECISION 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.
20. 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.
21. Export Program. Lion Precision’s policy is to fully comply with all applicable U.S. trade laws and regulations, including, without limitation, The Export Administration Act and the Export Administration Regulations administered by the U.S. Department of Commerce, Bureau of Industry and Security. Lion Precision is not responsible for any violation by Customer or any third parties of any applicable U.S. trade laws or regulations related to the sale, transfer or use of any Products. Customer hereby indemnifies and holds Lion Precision and its employees, officers, and directors harmless from any and all claims and liabilities (including, without limitation, reasonable attorney’s and other professional fees) that arise from or relate to any violations of any applicable U.S. trade laws or regulations alleged or committed by Customer or any third party acting for or on behalf of Customer related to any Product.”
This includes sales outside of the United States or sales to 3rd parties in the United States who are acting as agents and are representatives for companies doing business outside of the United States. Before any Lion Precision product is sold and transaction is completed between Customer and a 3rd party that is not an end user, inside or outside the U.S. the Customer agrees to notify Lion Precision. Customer acknowledges that the goods, software, technology/technical data, and/or services provided by Lion Precision 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 Lion Precision, Customer further agrees to furnish complete and accurate information to Lion Precision 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.
22. Special Orders. Special orders or accounts may require Lion Precision to stock certain quantities of raw materials, inventory, components, or Products to meet production requirements. Upon termination of a Special Order contract or a significant period passing without Customer ordering any such Product, upon Lion Precision’s written request Customer agrees to purchase said raw materials, inventory, components, or Products from Lion Precision at Lion Precision’s cost plus reasonable stocking charges.
23. Return Goods. All product returns are subject to approval by Lion Precision.
24. 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 Lion Precision. Customer may use the Products, Work, and documentation related thereto for the purpose of installing, maintaining, and operating the Products. However, Customer does not acquire any other rights in or to the Products, 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’ 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, in whole or in part, and Customer will not release any of the documentation related to the Products to any third party. Lion Precision 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.
25. Other General Terms. All terms and words used in these Terms & Conditions shall be construed to include any other number and any other gender as the context or sense of these Terms & Conditions or of any paragraph of these Terms & Conditions may require as if such terms or words had been fully and properly written in the appropriate number and gender. Captions are provided for convenience and ease of reference only and do not affect or modify the terms of any of the provisions of these Terms & Conditions. As used herein, reference to any Article, Paragraph, Section, Subparagraph, or Subsection shall apply or reference to only said Article, Paragraph, Section, Subparagraph, or Subsection of these Terms & Conditions unless specifically indicated otherwise. The terms of these Terms & Conditions have been cooperatively negotiated by and among the parties hereto, and there Terms & Conditions shall not be construed against any party hereto as its author.
26. 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 Lion Precision 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