Banner Engineering Corp. Terms and Conditions of Purchase

If any goods are not delivered or services not performed within the time specified in this contract or within a reasonable time if no time is so specified, Banner may refuse to accept such goods or services and cancel this Banner P.O. and shall be relieved of all liability for any undelivered goods or unperformed services, or Banner may require the goods to be shipped or the services to be performed by the most expeditious means and any additional transportation charges in excess of those which would apply for the usual means of transportation shall be Seller responsibility. All prices under this contract are established in the Banner P.O. and routing guide. Seller shall, at its 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 the current prevailing laws, rules and regulations. Seller must pay the costs of any unauthorized shipment. Banner has no obligation to place orders with Seller, and any orders placed shall be in its sole discretion. Nonetheless, the actual quantity of goods or services to be purchased shall be determined by Banner acting in its sole discretion. Any forecasts supplied by Banner from time to time are estimates only and Seller is solely responsible for managing Seller’s raw material, work in process and inventory. Banner reserves the right to set-off any expedited services costs from any other amounts owed to Seller.

With respect to the goods or services purchased under this contract and all other goods or services purchased from Seller, Seller expressly warrants for the Warranty Period as follows: (a) the goods shall strictly conform to all specifications, drawings, instructions, advertisements, statements on containers or labels, descriptions and samples; (b) the goods shall be free from latent or apparent defects in workmanship and material and shall be new and of the highest quality; (c) Banner shall receive title to the goods that is free and clear of any liens, encumbrances, charges and any actual or claimed patent, copyright or trademark infringement; (d) the goods shall be merchantable, safe and fit for the Banner's intended purposes, which purposes have been communicated to Seller; (e) the goods shall be adequately contained, packaged, marked and labeled; (f) all services performed by Seller shall be performed in a competent, workmanlike manner and in accordance with industry standards; (g) the goods shall be manufactured in compliance with all applicable federal, state, provincial and local laws, regulations or orders, and agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval or certification. These warranties shall be in addition to all other warranties, express, implied or statutory. These warranties shall survive inspection, test, delivery, acceptance, use and payment by Banner and shall inure to the benefit of Banner, its successors, assigns, customers and the users of Banner's products. These warranties may not be limited or disclaimed by Seller.

If Banner experiences any defect, failure or non-conformity during the Warranty Period, Banner shall have the right to take the following actions, at Banner's option: (1) retain the defective goods in whole or in part with an appropriate adjustment in the price for the goods; (2) require Seller to repair or replace the defective goods in whole or in part at Seller's sole expense, including all shipping, transportation and installation costs and (3) correct or replace the defective items with similar items and recover the total cost from Seller, including the cost of product recalls. For purposes of this contract, "Warranty Period" shall mean the longer of the following time periods: (a) three (3) years from the day of first use of the goods by Banner or acceptance by Banner, whichever occurs later; (b) if the goods are incorporated, in whole or in part, into goods sold by Banner to third parties, three (3) years after acceptance by such third parties or the time period of warranty that Banner gives to such third parties, whichever occurs later. Notwithstanding the foregoing, Seller agrees to waive the expiration of the Warranty Period in the event there are failures or defects discovered after the Warranty Period of a significant nature or in a significant portion of the goods, or a defect is discovered which, in Banner's opinion, constitutes a threat of damage to property or to the health and safety of any person. In no event shall Banner be liable to Seller for anticipated profits or for incidental or consequential damages. Banner’s liability for a claim of any kind or for any loss or damage arising out of or in connection with or resulting from this contract, or from any performance or breach, shall in no case exceed the price allocable to the goods or services or unit which directly gives rise to the claim. In addition to any right of set off provided by law, all amounts due Seller shall be considered net of indebtedness of Seller to Banner and its affiliated or related companies. Banner shall have the right to reduce and set off against amounts payable hereunder any indebtedness or other claim which Banner, or its affiliated or related companies, may have against Seller, or its affiliated or related companies, under this contract or any other agreement between the referenced parties. The rights and remedies of Banner and the warranties of Seller set forth in this contract shall not be exclusive and are in addition to any other rights, remedies and warranties provided by law or under this contract; and any attempt by Seller to limit Banner’s warranties, remedies or the amount and types of damages that Banner may seek shall be null and void. The failure of either party to enforce any rights under this contract shall not constitute a waiver of such rights or any other rights under this contract. All such goods, services and work are subject to inspection and test by Banner and its customer at any and all times, including during manufacture, and Banner shall at all times have the right to witness all tests by Seller involved in performance of this contract. Regardless of when payment is made and without prejudice arising from any prior performance, delivery or acceptance under this contract, Banner, in addition to its other rights, reserves the right to reject any part of the goods, services or work which does not conform to this contract with an adjustment in purchase price, or to require prompt correction or replacement thereof at Seller's expense, including transportation charges and labor costs for receipt or return of rejected goods or services. Banner’s final acceptance or rejection of the goods or services shall be made as promptly as practical after delivery, except as otherwise provided in this contract, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, shall neither relieve Seller from responsibility for such goods or services as are not in accordance with this contract’s requirements nor impose liabilities on Banner for them. Banner’s approval of Seller’s design, material, process, drawing, specifications or the like shall not be construed to relieve Seller of the warranties set forth herein, nor shall a waiver by Banner of any drawing or specification request for one or more articles constitute a waiver of any such requirements for the remaining articles to be delivered hereunder unless so stated by Banner in writing.

All of the software that is embedded in the Products or provided with the Products (the “Software”) is subject to these Terms and any applicable Supplementary Terms. To the extent not granted in Supplementary Terms, Seller hereby grants to Banner a single, personal, non-sublicensable and nonexclusive license to use Software in or in connection with the Products for which they are provided by Seller under any Order, to the limited extent necessary for the installation and use of the specific Products to which the Software relates, and to copy Software as necessary for those purposes only. All updates, modifications and enhancements to Software that are made available to Banner will be deemed part of that Software and will be governed by these Terms and Conditions.

Documentation (“Seller Documentation”) is provided with some Products. All of the Seller Documentation that is provided with the Products is subject to these Terms and Conditions. Seller hereby grants to Banner a single, personal, non-sublicensable, and nonexclusive license to use Seller Documentation to the limited extent necessary for the installation and use of the specific Product to which it relates, and to copy Seller Documentation as necessary for those purposes. All updates, modifications and enhancements to Seller Documentation that are made available to Banner will be deemed part of that Seller Documentation and will be governed by these Terms and Conditions.

IN NO EVENT WILL BANNER BE LIABLE TO SELLER 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 BANNER TO SELLER UNDER THIS AGREEMENT FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.

INDEMNIFICATION. SELLER SHALL INDEMNIFY AND HOLD HARMLESS BANNER, ITS OFFICERS, DIRECTORS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, AFFILIATES AND ASSIGNS FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, PENALTIES, FINES, LOSSES, COSTS OR OTHER LIABILITIES (INCLUDING BUT NOT LIMITED TO LOSS OF GOODS, DAMAGES TO PERSON OR PROPERTY, CLAIMS FOR WRONGFUL DEATH, WORKER’S COMPENSATION OR SIMILAR BENEFITS AND ATTORNEYS FEES AND EXPENSES, INCLUDING THOSE INCURRED TO ENFORCE THIS INDEMNIFICATION) (COLLECTIVELY “LOSSES”) ARISING OUT OF OR RESULTING FROM SELLER’S BREACH OF WARRANTY OR PERFORMANCE OF THIS CONTRACT OR ANY ACT OR OMISSION OF SELLER, WHETHER OCCURRING ON BANNER’S PREMISES OR ELSEWHERE. HOWEVER, SELLER SHALL HAVE NO OBLIGATION TO BANNER TO THE EXTENT SUCH LOSSES ARE ATTRIBUTABLE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF BANNER. SELLER’S OBLIGATIONS UNDER THIS PARAGRAPH 9 SHALL EXTEND TO THE ACTS AND OMISSIONS OF ITS EMPLOYEES, CONTRACTORS, SUBCONTRACTORS AND AGENTS.

SELLER SHALL INDEMNIFY AND HOLD BANNER HARMLESS FROM ALL LOSSES AND EXPENSES (INCLUDING ATTORNEY FEES) AS DEFINED IN PARAGRAPH 9 HEREOF, AND EXPENSES FOR INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENTS, TRADEMARKS, OR COPYRIGHTS, MISAPPROPRIATION OF TRADE SECRETS, OR ANY LITIGATION BASED ON OR RELATED IN ANY WAY TO THOSE THEORIES IN CONNECTION WITH THE SALE OR USE OF THE GOODS OR OUT OF THE SERVICES FURNISHED PURSUANT TO THIS CONTRACT. SELLER SHALL IF REQUESTED BY BANNER, ASSUME AT ITS OWN EXPENSE THE DEFENSE OF ALL SUITS ALLEGING SUCH THEORIES.

All equipment and material furnished to Seller by Banner, and all drawings, blueprints, jigs, fixtures, printing plates, dyes, tools or patterns, etc. charged by Seller to Banner shall be the property of Banner, and shall be promptly delivered to Banner at its request. All plans, drawings, specifications, documents and the subject matter contained therein and all other information given to Seller in connection with performance of this contract involve valuable property rights of Banner and, whether or not marked as such, shall be held confidential by Seller and shall not be used by Seller for any purpose other than those for which they are being prepared or supplied or used under this contract. Seller agrees that it will keep confidential all information used in the business of Banner to which Seller may become acquainted with, exposed to, or familiar with during the course of this contract and that Seller shall keep confidential the terms of this contract, including, without limitation, all pricing. If this contract involves developmental or research activities, including engineering or design services, all information developed in the course thereof shall be owned by Banner and be deemed confidential and proprietary property of Banner whether patented or not and Seller shall cooperate (and cause its employees to cooperate) in executing any documents and taking any other actions necessary or convenient to patent or otherwise perfect or protect for the benefit of Banner any inventions conceived, developed or reduced to practice in performance of this contract. If the order does not involve developmental or research activities, but the goods covered by it are to be produced in accordance with drawings or specifications furnished by Banner, Seller hereby grants to Banner an irrevocable, non-exclusive and royalty-free license to make, have made, use and sell any improvement in the goods which is conceived, developed or reduced to practice by Seller in the production of the goods under this contract. For the purposes of this paragraph 11, the confidentiality obligation of Seller shall extend to Seller’s officers, directors, agents, servants, employees, contractors, assigns and affiliates and Seller shall cause all such parties to be bound hereby.

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. 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. Seller warrants that its performance of this contract will comply with all applicable U.S. or federal, state, provincial and local laws, regulations, by-laws, ordinances, rulings and orders.

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. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming party within ten (10) days of the event. During the period of any delay or failure to perform by Seller, Banner, at its option, may purchase goods from other sources and reduce its schedules to Seller by such quantities, without liability to Banner, or cause Seller to provide the goods from other sources in quantities and at times requested by Banner and at the price set forth in this contract. If requested by Banner, Seller shall, within five (5) days of such request, provide adequate assurance that the delay will not exceed such period of time as Banner deems appropriate. If the delay lasts more than the time period specified by Banner, or Seller does not provide adequate assurance that the delay will cease within such time period, Banner may, among its other remedies, immediately cancel this contract without liability.

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, cancel an Order, otherwise discontinue any ongoing supply to or business with Seller, in whole or in part, at any time, without liability, if Seller files a petition of any type as to Seller bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, or goes 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 any damages Banner might suffer. The provisions of these Terms and Conditions which, by their nature, would continue beyond the termination or expiration will survive the termination or expiration of these Terms and Conditions.

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.

Anyone performing work or a specific service on Banner’s site must procure and maintain the insurances, acceptable to Banner, with minimum limits as listed below. Prior to any work commencing under this contract, Banner must be provided a Certificate of Insurance proving that all insurance is in force and that Banner has been named as an additional insured (except for workers’ comp) on all policies. The following additional language will be included on the certificates: “Company, as their interests may appear as Banner is an additional insured but only with respect to liability arising out of our operations under this contract.” Each certificate shall be endorsed to provide that Banner shall receive ten (10) days advance notice prior to cancellation or any material change.

i. Minimum Comprehensive General Liability Coverage of US $2,000,000 or equivalent in local currency.
ii. Minimum Automobile Liability Coverage of US $2,000,000 or equivalent in local currency.
iii. Evidence of Worker's Compensation coverage and Employers Liability Insurance including USL&H coverage if working on a facility dock or equivalent in other jurisdictions.
iv. Evidence of Excess Umbrella Liability coverage, if applicable.
The specific Banner facility name and address must also appear on the certificate, and insurance agents or brokers should mail the certificate to the proper facility.

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

Seller may not assign or otherwise transfer its 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 Seller 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. No ambiguity in any provision contained herein shall be construed against a party by reason of the fact it was drafted by such party or counsel.

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Terms Last Updated: November 18, 2021