Banner Engineering Corp. Terms and Conditions of Sale

1.       These terms and conditions (“Terms”) govern the sale of goods (“Products”) by Banner Engineering Corp. and its subsidiaries and affiliates (collectively, “Banner”) and apply to all purchases of Products from Banner by any purchaser (“you” or “your”) with notice of these Terms, however gained, including the use of Banner’s website, www.bannerengineering.com.

Some of Banner’s Products are subject to intellectual property licenses, software licenses, or other contract terms that you will not find here (“Supplementary Terms”).  If such Supplementary Terms exist for the Products being purchased, they will be found in a quotation, confirmation of sale, Product insert, or written agreement that accompanies or is associated with the Products. If you are uncertain if any Supplementary Terms exist for Products, you should contact Banner’s Customer Service at https://www.bannerengineering.com/us/en/forms/contact-us.html or by phone at 1-888-3-SENSOR (736767).

These Terms, Supplementary Terms (if any), and terms contained in the accompanying confirmation of sale, constitute the entire agreement (the “Agreement”) between the parties related to the sale of the Products specified in such confirmation of sale. If you are purchasing through use of Banner’s website, you also agree to the terms of Banner’s Terms of Use and Privacy Policy, which will be deemed part of the Agreement between you and Banner.

This Agreement can be accepted only on the exact terms set forth herein and no terms which are in any manner whatsoever additional to or different from those set forth herein (including any of your general terms and conditions of purchase regardless of whether or when you submitted your Purchase Order (“Order”)) shall become a part of or in any way alter or add to the Agreement without the express written consent of Banner. Banner rejects any additional or different terms provided by you that are contrary to these terms.  Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with this Agreement.

BY PLACING YOUR ORDER, YOU ACCEPT AND AGREE THAT YOUR ORDER IS AN OFFER TO BUY, UNDER THE TERMS OF THIS AGREEMENT, ALL PRODUCTS LISTED IN YOUR ORDER. YOU AFFIRM THAT IF YOU PLACE AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THE TERMS OF THIS AGREEMENT. ALL ORDERS MUST BE ACCEPTED BY BANNER OR BANNER WILL NOT BE OBLIGATED TO SELL THE PRODUCTS TO YOU. BANNER MAY CHOOSE NOT TO ACCEPT ORDERS AT ITS SOLE DISCRETION.

1.       You agree to pay Banner the Product prices in effect at the time of Order placement.  Prices are subject to change by Banner for any reason, including but not limited to your modification of orders, response to market conditions, or prices quoted in error.  You may cancel the undelivered portion of any affected order by delivering written notice to Banner prior to the shipment thereof.

Unless otherwise agreed by Banner in writing, payment of the purchase price must be received by Banner at the time of Order placement. For all other amounts, payment terms are net thirty (30) days after the date of Banner’s invoice. If Banner rejects all or part of an Order for any reason, any funds paid for the rejected portion of the Order will be refunded.

Banner accepts Check, ACH, WIRE or Credit Cards (Visa or MasterCard) for all purchases. You represent and warrant that (i) the credit card information you supply to Banner is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. Order fulfillment may be processed through third-party vendors such as Banner Online, Inc.

In addition to the purchase price and taxes paid at the time of your Order, you will reimburse Banner for all taxes (other than net income taxes), duties, and other charges of any kind imposed by any governmental authority that result from your payment of any amounts to Banner, or the use of the Products upon receipt of an invoice from Banner. INTEREST WILL BE CHARGED AT THE RATE OF 1% PER MONTH OR THE MAXIMUM LEGAL RATE, WHICHEVER IS LESS, ON PAST DUE ACCOUNTS AFTER THIRTY (30) DAYS FROM DATE OF INVOICE. You shall reimburse Banner for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Banner reserves all rights with respect to delivered Products, including the rights of rescission, repossession, resale, and stoppage in transit until the full amount due has been paid.

Changes in specifications or designs relating to any Products, changes in delivery schedules or reschedules or cancellations of Orders are not permitted unless Banner has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by you. There are no cancellations and no returns (“NCNR”) on any accepted Orders of Banner non-standard or custom Products. No returns will be accepted without prior written authorization from Banner and a completed Return Material Authorization form provided by Banner (“RMA”). Contact Banner’s Customer Service at https://www.bannerengineering.com/us/en/forms/contact-us.html or by phone at 1-888-3-SENSOR (736767) to request the RMA form.

Quoted shipping dates are good faith estimates and are subject to change.  Banner reserves the right to ship prior to the quoted ship date and to ship in installments. Banner will not be liable for any damages due to any failure or delay in its performance as result of any cause(s) beyond its reasonable control. In its sole discretion Banner may allocate, defer, delay or cancel without liability any order delayed by any such cause(s).

Banner will deliver the Products “FCA” (as defined in INCOTERMS 2020) Banner’s designated facility indicated in the Banner confirmation of sale. You shall, at your sole cost and expense, be responsible for obtaining all licenses and permits and for satisfying all formalities as may be required to import the Products into any other country in accordance with then prevailing laws, rules and regulations. Any extra charge incurred for additional services, including loading, storage and handling, will be paid by you. Title to the Products and risk of loss or damage to Products shall pass to you upon Banner’s tender to carrier, to you or your designated agent, whichever occurs first. If you have not specified a carrier in your Order, Banner may select the carrier but will not be deemed thereby to assume any liability in connection with the shipment nor will the carrier be construed to be an agent of Banner.

You shall inspect the Products upon arrival and notify Banner in writing within 24 hours of delivery of any claims that the Products do not conform to specifications or of damage. Failure to give such written notice during such period will constitute satisfactory shipment by Banner and irrevocable acceptance by you of all Products. Notwithstanding the foregoing, claims for loss or damage of Products which Banner determines occurred in transit must be made to the carrier and not to Banner.

Some Banner products have embedded software. Some Banner products use software that is provided separately from those Banner products. All of the software that is embedded in the Products or provided with the Products (the “Banner Software”) is subject to these Terms and any applicable Supplementary Terms. To the extent not granted in Supplementary Terms, Banner hereby grants to you a single, personal, non-sublicensable and nonexclusive license to use Banner Software in or in connection with the Products for which they are provided to you under this order, to the limited extent necessary for the installation and use of the specific Products to which it relates, and to copy Banner Software as necessary for those purposes only. No license to use Banner Software in source code form is granted. You must not modify, decode, clone, disassemble, decompile, decrypt, reverse engineer or otherwise attempt to derive or gain access to the source code of any Banner Software. Except as provided in this Section, no license to any Banner Software is granted to you. All updates, modifications and enhancements to Banner Software that are made available to you will be deemed part of that Banner Software and will be governed by these Terms.

Documentation (“Banner Documentation”) is provided with some Banner products. All of the Banner Documentation that is provided with the Products is subject to these Terms and Conditions. Banner hereby grants to you a single, personal, non-sublicensable, and nonexclusive license to use Banner Documentation to the limited extent necessary for the installation and use of the specific Product to which it relates, and to copy Banner Documentation as necessary for those purposes. Except as provided in this Section, no license to any Banner Documentation is granted to you. All updates, modifications and enhancements to Banner Documentation that are made available to you will be deemed part of that Banner Documentation and will be governed by these Terms and Conditions. You must not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Banner Software or Documentation, including any copy thereof.

The use and operation of some Banner products requires software not licensed by or provided by Banner. You are responsible for obtaining the third party software, and the rights to use the third party software, that are necessary for the proper operation of the Products.

Product Warranty. Banner warrants to you, the original purchaser, that its Products are free from defects in material and workmanship for a period of twelve (12) months from the date of manufacture of the Products (evidenced by Banner’s product manufacture date code) (the “Limited Warranty Period”).  Your sole remedy and Banner’s sole obligation for any Products that are nonconforming when delivered to you, or are found to be defective during the Limited Warranty Period, will be, in Banner’s sole discretion, to replace the nonconforming Product or provide you with a credit equal to the purchase price of the nonconforming or defective Product.

You must notify Banner in writing within the Limited Warranty Period if you discover that a Product is nonconforming or defective and provide a description of the nonconformity or defect, together with pictures of the Product, and a completed Banner Return Material Authorization form provided by Banner (“RMA”).  If Banner determines that the Product is nonconforming or defective and the claim is made within the Limited Warranty Period, Banner will instruct you to either dispose of or return the nonconforming or defective Product to Banner together with the completed Banner RMA.  No Product returns will be accepted without a Banner approved RMA.  Returned Products must be sent to Banner’s designated facility at Customer’s cost.

This limited warranty does not cover and Banner will have no obligation to replace any Product if (i) replacement is required as a result of normal wear and tear, or causes external to the Product, (ii) the Product has been altered other than by an authorized Banner representative, (iii) the Product has not been properly installed, used or maintained; or (iii) the replacement is requested after the Limited Warranty Period has expired.

THIS LIMITED WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH BANNER HEREBY EXPRESSLY DISCLAIMS.  

Software Warranty. UNLESS OTHERWISE PROVIDED FOR IN SUPPLEMENTARY TERMS, ALL BANNER SOFTWARE AND BANNER DOCUMENTATION ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE.” BANNER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO BANNER SOFTWARE OR BANNER DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH BANNER HEREBY EXPRESSLY DISCLAIMS.

IN NO EVENT WILL BANNER BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER RESULTING FROM ANY PRODUCT, SOFTWARE OR DOCUMENTATION DEFECT OR FROM THE USE OR INABILITY TO USE THE PRODUCT, SOFTWARE OR DOCUMENTATION, WHETHER ARISING IN CONTRACT OR WARRANTY, STATUTE, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT BANNER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT WILL BANNER'S LIABILITY OF ANY KIND WITH RESPECT TO BANNER PRODUCTS, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO BANNER UNDER THIS AGREEMENT FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.

You will indemnify, defend and hold harmless Banner and Banner’s employees, officers, directors and suppliers against all loss, cost, damage and expense (including reasonable attorney’s fees and cost of suit) arising out of or related to (i) claims of negligence, strict liability, product liability, breach of warranty (except warranty claims properly made by you) or otherwise with respect to the Products that are bought by you, your successors or assigns, or any third party, and (ii) your use of the Products.

Except to the extent you have supplied specifications, drawings or other intellectual property owned or controlled by you prior to the purchase of the Products (“Pre-Existing Intellectual Property”) to Banner for the development of Products specifically for you that incorporate your Pre-Existing Intellectual Property, you acknowledge and agree that as between you and Banner, Banner is the sole owner of all intellectual property associated with Banner Products, including trade secrets, know-how, copyrights, trademarks, service marks, trade dress, and patents, and you will not directly or indirectly do anything to assert an interest in or to claim any rights to Banner’s intellectual property. To the extent you submit Pre-Existing Intellectual Property to Banner for the development of Products, you hereby grant Banner a non-exclusive license to the extent necessary to develop the Products for you.

“Confidential Information” means all information that is disclosed or otherwise made available by either party under this Agreement, or to which the other party has access under this Agreement, that the receiving party knows or should reasonably be expected to know is proprietary or confidential to the other party.

A party receiving Confidential Information agrees to not disclose such Confidential Information to any third party without the express written consent of the disclosing Party.  The parties agree to use the Confidential Information strictly in performance of the receiving party’s obligations and the exercise of the receiving party’s rights under this Agreement. During the term of this Agreement and thereafter, the receiving party will safeguard against disclosure of the Confidential Information to third parties using at least the same degree of care to prevent disclosure as it uses to protect its own information of like importance, but at least reasonable care.  Each party must provide the other with notice of any governmental, judicial, or administrative order or proceeding to compel the disclosure of Confidential Information received under this Agreement, as promptly as the circumstances of such order or proceeding reasonably permit. Each party will return the other’s Confidential Information promptly after the other party’s request.  Each party, as receiving party, shall be responsible for the breach by any of its employees or contractors of receiving party’s obligations under this Section.

Neither party will be obligated to maintain any information in confidence or refrain from use if (i) the information was in the receiving party’s possession or was known to it prior to its receipt from the disclosing party without obligation of nondisclosure, (ii) the information is independently developed by the receiving party without the utilization of Confidential Information of the disclosing party, (iii) the information is or becomes public knowledge without fault of the receiving party, or (iv) the information is or becomes available on an unrestricted basis to the receiving party from a source other than the disclosing party.

In addition to the protections and remedies available to Banner under this Agreement, proprietary, trade secret and Confidential Information of Banner are protected by the Minnesota Uniform Trade Secrets Act, Minnesota Statutes Section 325(c), et. al., by the U.S. Defend Trade Secrets Act (“DTSA”) and violations can give rise to both civil and criminal liability.

The parties agree to conduct their businesses in an ethical manner and in compliance with all applicable laws, including, without limitation, the U.S. Foreign Corrupt Practices Act and U.S. export control laws and regulations.  You agree that you will not resell or transship the Products or any technical information regarding the Products: (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

Banner will be excused from, and will not be liable for any non-performance under this Agreement that is caused by or arises from, in whole or in part, an occurrence beyond the control of Banner or Banner’s suppliers, including but not limited to acts of war (declared or not), terrorism, sabotage, insurrection, riot or other act of civil disobedience, accident, fire, explosion, flood, storm or other act of God, epidemic, pandemic, change in government regulation that renders performance impossible or commercially impractical, shortage of labor, fuel, shortages or price increases for raw material, shipping containers or ships or other modes of transportation used to deliver the Products, or delays at ports of entry, or machinery, or technical or yield failure that are due to circumstances or occurrences beyond Banner’s control.

Either party may terminate this Agreement by giving notice in writing to other party if the other party materially breaches these Terms and does not cure the breach within thirty (30) days of receipt of written notice of the breach. Banner may cease work, terminate an Order, otherwise discontinue any ongoing supply to or business with you, in whole or in part, at any time, without liability, if you file a petition of any type as to your bankruptcy, are declared bankrupt, become insolvent, make an assignment for the benefit of creditors, or go into liquidation or receivership. In all cases, Banner’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination, including Banner’s right to payment of the price of Products that are shipped and any damages Banner might suffer. The provisions of this Agreement which, by their nature, would continue beyond the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.

This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota, United States of America, excluding its conflicts of law provisions and expressly excluding the United Nations Convention of the International Sale of Goods. All controversies and claims arising out of or relating to this Agreement, or the breach thereof, will be settled by arbitration in Minneapolis, Minnesota administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration panel will be made up of three (3) arbitrators, all of whom have experience with commercial contracts and manufacturing.  Within fifteen (15) days of the delivery of the notice of arbitration, each party shall choose one arbitrator, and the two arbitrators chosen by the parties will choose a third arbitrator.  The award of the arbitrator will be issued within thirty (30) days of the completion of the arbitration hearing, shall be in writing, and shall state the reasoning on which the award is based.  Judgment upon the award rendered in the arbitration may be entered by either party in any court of competent jurisdiction.

These Terms are subject to change without prior written notice at any time, in Banner’s sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on Banner’s website www.bannerengineering.com. Your continued use of Banner’s website after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

You may not assign or otherwise transfer your rights and obligations under this Agreement except with the prior written consent of Banner. A successor to Banner by assignment of this order, or to the assets or business of Banner by merger, operation of law, purchase or otherwise, will acquire all interest of Banner hereunder. Any prohibited assignment will be null and void.

Notices permitted or required to be given hereunder will be deemed sufficient if given by (i) registered or certified mail, postage prepaid, return receipt requested, or (ii) email. Notices given by mail will be effective on the fifth (5th) business day following the date the notice was posted. Notices given by e-mail will be effective on the date given. Notices to you will be sent to the address or email addresses designated in your order. Notices to Banner must be sent to Banner Engineering Corp., Attn: Legal, 9714 Tenth Avenue N., Plymouth, Minnesota 55144.

If any part of this Agreement is held illegal, void or ineffective, the remaining portions will remain in full force and effect. No failure by either party to take any action or assert any right under this Agreement will be deemed to be a waiver of that right in the event of the continuation or repetition of the circumstances giving rise to that right.

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Terms Last Updated: October 27, 2023