TERMS AND CONDITIONS
1. Applicability of Terms and Conditions of Sale. These Terms and Conditions of Sale apply to all sales by Millennium Technologies (the “Seller”). The terms on the front of this Invoice and these Terms and Conditions constitute the entire agreement between Seller and Buyer with respect to the purchase and sale of the products described on the front of this Invoice. Seller’s acceptance of any order is conditional upon the Buyer’s assent to these Terms and Conditions of Sale. Seller hereby objects to any additional or diﬀerent terms or conditions, whether contained in any purchase order or other communication from Buyer. No order accepted by Seller may be altered or modiﬁed unless in a writing signed by an authorized agent of Seller in pen and ink; and no such order may be cancelled or terminated except upon payment of Seller’s loss, damage and expense arising from such cancellation or termination.
2. Prices. The prices are subject to change by Seller at any time.
3. Changes. Seller may at any time make such changes in design and construction of products, components or parts as Seller deems appropriate, without notice to Buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by government authority or nonavailability of materials from suppliers.
4. Delivery, Claims and Delay. All delivery dates are approximate and subject to change according to production volume, customer-supplied info, quality assessment, or third party parts delivery. Delivery will be f.o.b. point of shipment, and all risk of loss or damage in transit shall be borne by Buyer. Seller reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. If shipment shall be deferred at Buyer’s request, payment shall become due and payable upon notiﬁcation by the Seller that the products provided for by this agreement are ready for shipment. In case of such delay in shipment, storage shall be at the Buyer’s risk and expense. Prorata payments shall be made for partial shipments.
As indicated on the front of this Invoice, claims for shortages or other errors in delivery must be made in writing to Seller within 5 days after receipt of shipment; and failure to give such notice shall constitute unqualiﬁed acceptance and a waiver of all such claims by Buyer. Claims for loss or damage to goods in transit should be made to the carrier and not to Seller.
Seller shall not be liable for any damage as a result of any delay due to any cause beyond Seller’s reasonable control, including, without limitation, an act of God, act of the Buyer, embargo or other governmental act, regulation or request, ﬁre, act of terrorism, accident, strike, slow-down, war, riot, delay in transportation or inability to obtain necessary labor, materials, transportation or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay. Buyer’s exclusive remedy for other delays and for Seller’s inability to deliver for any reason shall be rescission of the purchase agreement.
Orders/Service can be canceled without penalty but must be canceled in writing and acknowledged by Millennium Technologies before work has begun or before the item has been shipped. If the order has been processed or service work has begun, the order must be canceled in writing and acknowledged by Millennium Technologies. If available, the refund would be pro-rated based on work performed at the time of acknowledgement by Millennium Technologies. If the order has been completed and shipped at the time of cancelation, the order can be canceled by returning the item to Millennium Technologies and would be subject to a 20% restock fee.
5. Payment Terms. Terms of payment shall be as speciﬁed on the front of this Invoice. If not so speciﬁed, terms of payment for products shall be before shipment of products. Where Seller is to provide service, terms of payment for such service shall be as speciﬁed in Seller’s quotation or sales form. If not so speciﬁed, terms of payment for services shall be after completion of services. Interest at the rate of one and one-half percent (1 1/2%) per month (but not greater than the highest rate permitted by applicable law) will be charged on all accounts not paid when due.
6. Limitations on Warranties and Remedies. Seller warrants only to Buyers that do not intend to use the products on the front of this Invoice for personal, family or household purposes. All other Buyers do not receive a warranty from Seller and, as such, the rest of this Paragraph 6 is inapplicable. For those Buyers to which this Paragraph 6 is applicable, Seller warrants all products manufactured by it and supplied hereunder to be free from defects in material and workmanship appearing within [one (1)] day from the date of shipment to Buyer. This warranty shall not apply to any products not manufactured by Seller; such products are sold AS IS, except that the warranties, if any, of the respective manufacturers of such products, parts or material shall be assigned by Seller to Buyer. Seller has no liability for products installed by anyone other than it or its authorized agent. Seller shall not have any responsibility hereunder with respect to products which have been repaired or altered by others without Seller’s written consent.
Seller warrants that any services it provides hereunder against failures, appearing within one (1) day after completion thereof, by Seller to perform such services in a manner consistent with customary practice in Seller’s industry. If within the applicable warranty period any products or services warranted hereunder are proven to Seller’s satisfaction to be defective, such products will be repaired, or at Seller’s option, replaced without charge. Seller’s obligation hereunder is further conditioned upon Seller’s receipt of written notice of any alleged defect within ten (10) calendar days of its discovery, and at Seller’s option, the return of the allegedly defective products to Seller at the place Seller directs. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE, AND SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES WHATSOEVER WITH RESPECT TO PRODUCTS, PARTS OR SERVICES MANUFACTURED OR FURNISHED BY IT, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Any description of the products, whether in writing or made orally by Seller or its agents, speciﬁcations, samples, models, bulletins, drawings, diagrams or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the products and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the products shall not be construed as an express warranty unless conﬁrmed to be such in writing by Seller.
7. Limitations on Consequential Damages and Other Liability; Buyer’s Indemnity. Except as otherwise agreed in writing, Seller’s liability with respect to the products and/or services sold hereunder shall be limited to the warranty provided in Paragraph 6 hereof and, with respect to other performance of this contract, shall be limited to the contract price. SELLER SHALL NOT BE SUBJECT TO AND DISCLAIMS ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.
Without limiting the generality of the foregoing, Seller speciﬁcally disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost proﬁts or revenues, loss of use of products or any associated products, cost of capital, cost of substitute products, facilities or services, down-time, shut-down or slowdown costs, or for any other types of economic loss, and for claims of Buyer’s customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including, without limitation, attorneys’ fees and other costs of defending any action) which Seller may incur as a result of any claim by Buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller’s negligence.
8. Taxes and Other Charges. Any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, duty, custom, or any other tax, fee or charge of any nature whatsoever, imposed by any governmental authority, on or measured by any transaction between Seller and the Buyer, shall be paid by the Buyer in addition to the prices quoted or invoiced, unless Seller speciﬁcally states that such taxes or charges are included in such price. In the event Seller shall be required to pay any such tax, fee or charge, the Buyer shall reimburse Seller therefor (including any interest and penalties relating thereto), or, in lieu of such payment, the Buyer shall provide Seller at the time the order is submitted with an exemption certiﬁcate or other document acceptable to the authority imposing the same.
9. Patents, Trademarks and Copyrights. Seller will, at its expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent, trademark or copyright relating to any products manufactured and furnished by Seller hereunder, if such alleged infringement consists of the use of such products, or parts thereof, by Buyer for any of the purposes for which the same were sold by Seller, and provided Buyer shall have made all payments then due hereunder and shall give Seller immediate notice in writing of any such suit and transmit to Seller immediately upon receipt all processes and papers served upon Buyer and permit Seller through its counsel, either in the name of Buyer or in the name of Seller, to defend the same and give all needed information, assistance and authority to enable Seller to do so. If such products are in such suit held in and of themselves to infringe any valid United States patent, trademark or copyright, then: (a) Seller will pay any ﬁnal award of damages in such suit attributable to such infringement, and (b) if in such suit use of such products by Buyer is permanently enjoined by reason of such infringement, Seller shall, at its own expense and at its sole option, either (i) procure for Buyer the right to continue using the products, (ii) modify the products to render them non-infringing, (iii) replace the products with non-infringing goods, or (iv) refund the undepreciated portion of the purchase price and transportation costs paid by Buyer for the products or services, determined after depreciation on the basis of a ﬁve-year useful life.
Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the products in combination with other goods or materials not furnished by Seller. THE FOREGOING STATES THE ENTIRE LIABILITY OF SELLER FOR INFRINGEMENT; AND IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO AN INFRINGEMENT. As to any products furnished by Seller to Buyer manufactured in accordance with drawings, designs or speciﬁcations proposed or furnished by Buyer or any claim of contributory infringement resulting from the use or resale by Buyer of products sold hereunder, Seller shall not be liable, and Buyer shall indemnify Seller against any award made against Seller for any and all patent, trademark or copyright infringements.
10. Buyer’s Property. No property of Buyer placed in Seller’s custody for performance of this contract is covered by Seller’s insurance, and Seller assumes no risk in the event of loss or damage to such property by ﬁre, water, burglary, theft, civil disorder or any accident beyond Seller’s reasonable control.
11. Returns and Refused Shipments. Products may be returned to Seller only when Buyer obtains Seller’s advance written permission therefor and Seller has provided Buyer with a RGA number. As indicated on the front of this Invoice, returned products are subject to a standard 25% restocking fee. As indicated on the front of this Invoice, any refused shipments due to insuﬃcient funds or inability of carrier to deliver the products are subject to a 25% restocking fee. Returned products must be securely packaged to reach Seller without damage; and any cost incurred by Seller to put products in marketable condition will be charged to Buyer.
12. Technical Information. Any sketches, models or samples submitted by Seller shall remain the property of Seller, and shall be treated as conﬁdential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models and samples, or any design or production techniques revealed thereby, shall be made without Seller’s express written consent.
13. Important Note Relating to Seller’s Products and Services. Products and services provided by Seller have the potential to substantially raise the torque and horsepower output of a motorcycle. Additionally, high performance parts exert greater stress on motorcycle components. Seller assumes no responsibility for injury or damage to a motorcycle resulting from increased torque and horsepower output or failure of any components of such motorcycle due to Seller’s products and services. Seller urges that Seller’s products not be used unless, after a motorcycle has been modiﬁed with Seller’s parts and services, the owner is able to remain in complete control of the motorcycle and is willing to accept responsibility for the eﬀects Seller’s products and services may have.
14. Governing Provisions. THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF WISCONSIN (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. SELLER RESERVES THE RIGHT TO IMPOSE DIFFERENT OR ADDITIONAL TERMS OF SALE ON INTERNATIONAL SALES AND/OR SALES OF SERVICES.