TERMS AND CONDITIONS
ENTIRE AGREEMENT: Every sale of goods or performance of services by Sound Inspectors, LLC (“Sound Inspectors”) is subject to these terms and conditions. No purchase order shall be binding until acknowledged in writing by Sound Inspectors incorporating these terms as though stated therein. The acknowledgement or other order document containing these Terms and Conditions (“Agreement”) contains the entire agreement between the parties and supersedes all prior statements of any kind by or between the parties. If the Agreement is construed to be an offer, the offer expressly limits acceptance by Customer to these terms and notice of objection to any different or additional terms is hereby given. If the Agreement is construed to be an acceptance of an offer, this acceptance is expressly conditioned upon Customer’s assent to any different or additional terms contained herein. If the Agreement is construed as a confirmation of an existing contract, the parties agree that this confirmation states the exclusive terms of any contract between the parties. Sound Inspectors takes exception to and hereby objects to all hold harmless and indemnity provisions, either express or implied, set forth in Customer’s order, including, but not limited to, those that attempt to make Sound Inspectors responsible for Customer’s negligence. Sound Inspectors also objects specifically to any provisions in Customer’s order that (a) attempt to impose warranties other than as set out herein, (b) attempt to prohibit disclaimers of warranties, (c) attempt to preclude limitations on Customer’s remedies, or (d) attempt to impose damages resulting from performance failures. Acceptance of goods or services shall constitute conclusive acceptance of these terms and conditions.
MODIFICATION: None of the terms and conditions contained herein may be added to, modified, superseded or otherwise altered, including by course of dealing, except by a written instrument specifically referencing the affected provision signed by an authorized representative of Sound Inspectors and an authorized representative of Customer. The failure or delay or either party in the enforcement of the rights detailed herein shall not constitute a waiver of the rights nor shall it be considered as a basis for estoppel either at equity or at law. Either such party may exercise its rights hereunder despite any delay or failure to enforce those rights at the time the cause of action or right or obligation arose.
ASSIGNMENT: Customer may not assign or transfer the Agreement, or all or any part of its rights hereunder, by operation of law or otherwise, without the prior written consent of Sound Inspectors which may be withheld in Sound Inspectors’ absolute and sole discretion. Any unauthorized assignment or transfer of Customer’s rights or obligations hereunder shall be null and void. Sound Inspectors may assign the Agreement, or all or any part of its rights hereunder, in its sole discretion and without notice to or consent from Customer.
TERMS OF PAYMENT: Unless otherwise agreed by Sound Inspectors in writing, terms will normally be due upon order placement. Payments made by credit or debit card will be subject to convenience or other fees in accordance with applicable law. Orders are subject to final approval by Sound Inspectors, which may require full or partial advancement. If Customer delays order processing, partial payment based on the portion of the order completed shall then be paid. Pro rata payments shall be due as shipments are made. In the event Customer delays shipment, full payment shall be due thirty days from the date Sound Inspectors could have otherwise shipped the goods. Storage shall be at Customer’s risk and charges therefor shall be paid before shipment. If Customer does not pay on time, Sound Inspectors reserves the right to charge Customer interest on the unpaid balance until paid at the lower of 0.625% per month or the highest rate allowed by law. Sound Inspectors reserves the right to process an electronic ACH debit to Customer’s bank account in the event Customer presents Sound Inspectors with a check returned for non-sufficient funds.
CANCELLATION/CHANGE: Orders may only be cancelled with Sound Inspectors’ written consent, which may be withheld in Sound Inspectors’ sole and absolute discretion. If Sound Inspectors consents to cancel an order, Customer shall pay for every loss, cost, or damage which Sound Inspectors may suffer as a result and an appropriate cancellation charge, including, but not limited to, labor and service costs, shipping costs, and restocking fees determined by Sound Inspectors. Additional costs associated with changes requested by Customer, after acceptance of order, may be charged to Customer. Verbal changes are not accepted by Sound Inspectors.
QUOTATIONS AND PRICES: All prices quoted are estimates only and are subject to change without notice. All quotations are based on cash or check payment in United States dollars. Payment by credit or debit card will result in additional charges in accordance with applicable law. All quotations are subject to modification for any changes in tariffs, regulatory or other governmental charges, or pricing changes outside of the exclusive control of Sound Inspectors. Unless otherwise rescinded, altered, revoked, or otherwise modified earlier, all quotations expire at noon central time on the 20th calendar day after date of quotation. Sound Inspectors reserves the right to correct any clerical or other errors and shall not be bound by such errors. Shipping charges, including freight-in and -out and Sound Inspectors’ standard handling charge in effect at the time, are prepaid and added to invoices, unless otherwise agreed to in writing. Note: Customer is responsible for freight-in on “freight collect” shipments. Total price for services will be calculated based on Sound Inspectors’ standard service rates in effect at the time the services are performed. All prices and/or discounts are based on receiving an order for the quantities specified. Any change in quantity may result in a change in price and/or discount.
DELIVERY AND SCHEDULING: Shipping and scheduling dates are not guaranteed. Reasonable efforts will be made to meet schedules for shipment of goods or completion of services stated herein, but Sound Inspectors shall not be responsible for any delay or failure to do so nor will Sound Inspectors be responsoible for any costs or damages of Customer as a result of any such failure. In addition, Sound Inspectors shall not be responsible for failures due to causes beyond its control, including, but not limited to, accidents, casualty, strikes or other labor disputes, acts of God, delays in transportation, failures of Sound Inspectors’ vendors or suppliers, government regulations, and/or shortages.
SERVICE TIME: Unless otherwise specified in writing by Sound Inspectors, all consulting, instruction, training, and assistance rates are billed in 1-hour increments with fieldwork billed in 8-hour increments. Time spent traveling to and from the service location is billed at half the applicable rate, billed in one hour increments.
PRODUCT KEYS & RESTRICTIONS: Some products may come with software or hardware-keys to enable a product, or certain parts or features of a product. Upon delivery, it is the Customer’s sole responsibility to securely store and retain all such keys. Customer shall be liable for any costs to replace keys not returned in satisfactory functioning condition as well as any costs incurred based on Customer’s use of the keys in a manner other than as specified by Sound Inspectors. Additional and replacement keys may be purchased at additional cost. Some products may be sent to Customer with key based limitations that can affect Customer’s use of product, which may include disabling of product features (or the disabling of the entire product) upon an expired term of a rental, lease, or maintenance period, unpaid invoice, end of an evaluation period, or other reasons as determined by Sound Inspectors.
RENTALS: All Product Rentals are subject to the Rental Agreement and these Terms and Conditions to the extent not expressly modified by the Rental Agreement.
SERVICE AGREEMENT: All services provided under any Service Agreement are subject to the Service Agreement and these Terms and Conditions to the extent not expressly modified by the Service Agreement.
RETURNS: No credit will be given for returns except by prior approval of Sound Inspectors, which Sound Inspectors may withhold in its absolute discretion. Customer must obtain a Return Goods Authorization (RGA) number from Sound Inspectors before any product can be returned. The RGA number must be identified on the outside of all packaging. Special materials or equipment may not be returned. If approved for return, returned equipment shall be in new, re-sellable, never installed conditioned. A minimum 25% restocking charge will be applied to all returns and deducted from any credit to be issued upon inspection of product with actual charges to be determined by Sound Inspectors in its sole discretion upon receipt of the returned goods.
TITLE AND RISK OF LOSS: Unless otherwise specified in writing by Sound Inspectors, delivery points shall be Ex-Works Sound Inspectors’ loading dock and the title to the goods and risk of loss passes to Customer at that point. Customer must state method of shipment preferred or Sound Inspectors will determine method. Customer assumes the risk of damage or loss in transit. If Customer gives a clean receipt for damaged goods or for shipment upon which there are shortages, Sound Inspectors is not responsible for any shortages. Claims for goods delivered short, damaged or defective (not due to fault of carrier) shall be filed with Sound Inspectors within ten days from date of invoice or shall be waived. Customer’s claims for shortages shall detail shipment weights and method of counting the goods. Claims for goods delivered short, damaged or defective as a result of the fault of the carrier will be handled by Sound Inspectors directly with the carrier.
EXPORT SALES: It is Customer’s sole responsibility to comply with all United States export control rules and regulations. Sound Inspectors cannot be named as shipper or exporter of record for such goods. Some items sold may be controlled by the U.S. Government and require authorization for export to the country of ultimate destination or for use by the ultimate consignee or end-user(s). These items may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
GOVERNMENT CONTRACTS: If Customer purchases goods for sale to any U.S. government, state or local government agency, Customer is responsible to notify Sound Inspectors of all government procurement conditions applicable to the sale when Customer requests Sound Inspectors’ quotation. Sound Inspectors will review the conditions and advise Customer of Sound Inspectors’ ability to comply. If any government action should place or contain a limitation on the price provided for in the Agreement such that it would be illegal or against public or government policy for Sound Inspectors to charge, assess or receive the full amount or to increase such prices as determined by the Agreement, then Sound Inspectors shall have the option to (1) continue to perform under the Agreement subject to such adjustments in prices that Sound Inspectors may deem necessary to comply with such government action, (2) revise the Agreement, subject to Customer’s approval which shall not be unreasonably withheld, in order to most nearly accomplish the original intent of the Agreement, or (3) terminate performance of the affected portions of the Agreement without liability for any damages.
TAXES: Customer shall pay any present or future federal, state, local or other applicable tax. If not taxable, current exemption certificate must be submitted with purchase order.
LIMITED WARRANTY/DISCLAIMER: Subject to the limitations contained herein, Sound Inspectors warrants that for a period of twelve (12) months from the date of shipment of new goods manufactured by Sound Inspectors or completion of services provided by Sound Inspectors that (i) the provision of services by Sound Inspectors was performed in a competent and workmanlike manner and (ii) that the goods manufactured by Sound Inspectors are free from defects in materials and workmanship that materially affect performance and functionality under normal use and care. For designated used goods, subject to the limitations contained herein, Sound Inspectors warrants that for a period of ninety (90) days from the date of shipment of used goods that the goods are free from defects in materials and workmanship that materially affect performance and functionality under normal use and care. In the event of a claim of nonconformance, the sole and exclusive remedy, to be determined in Sound Inspectors’ sole discretion, will either be to (i) re-perform the services or replace the goods, (ii) repair or replace the parts that were serviced or that are nonconforming (replacement parts may be either new or rebuilt at Sound Inspectors’ sole discretion), or (iii) if neither re-performing, repair or replacement is commercially reasonable, Sound Inspectors may refund a prorata portion of the cost of the goods or services provided to Customer for any non-conforming goods or services for which Customer invoked this warranty by providing written notice to Sound Inspectors within the warranty period. Warranty repairs shall be performed at Sound Inspectors’ designated service center unless otherwise determined by Sound Inspectors. Customer is responsible for all costs of delivering goods to be repaired or replaced to Sound Inspectors and all costs of returning goods to Customer. Warranty work for services performed by Sound Inspectors shall be performed where the service was originally performed unless otherwise agreed to in writing by Sound Inspectors in advance. Customer shall be responsible for any and all costs incurred in making the potentially warrantied work accessible. For the avoidance of all doubt, and without limiting the foregoing in any way, this exclusion from coverage encompasses any and all costs, necessary or otherwise, (1) to make the allegedly defective item accessible for repair or replacement or (2) for any costs for repair or replacement of any connected or related items, even if repair or replacement is necessary as a result of the defect in the warrantied item. Sound Inspectors shall not be obligated to pay any costs or charges incurred by Customer or any other party. All costs of dismantling, reinstallation and freight and the time and expenses of Sound Inspectors’ personnel and representatives for site travel and diagnosis under this Limited Warranty shall be borne solely by Customer. Any work performed or items repaired or replaced under this limited warranty shall be warranted for the remainder of the original warranty period subject to these same terms and conditions. The remedies set forth in this section shall be Sound Inspectors’ sole liability and Customer’s sole and exclusive remedies for any breach of this Limited Warranty.
With respect to goods manufactured by third parties, Sound Inspectors hereby assigns the original manufacturers’ warranties and remedies, to the extent assignable.
All claims under this Limited Warranty must be initiated, in a writing delivered to Sound Inspectors, prior to expiration of the applicable warranty period.
Any and all warranties from Sound Inspectors are void as to all allegedly nonconforming goods or services that fail, malfunction, or are damaged (1) as a result of: (a) improper or inadequate handling, installation, modification, maintenance, storage, removal, modification, or repair; (b) normal wear and usage; (c) use of unauthorized replacement parts; or (d) any other causes that are not the fault of Sound Inspectors; or (2) that are accidentally damaged, subjected to abuse or improper use, unsuitable power sources or environmental conditions, or are otherwise not used in accordance with their intended purpose; or (3) are altered such that Sound Inspectors is unable to verify the non-conformance with its (or the original manufacturer’s) normal test equipment.
THE EXPRESS WARRANTIES SET FORTH ABOVE ARE IN LIEU OF AND SUPERCEDE (i) ALL OTHER WARRANTIES AND REMEDIES WHETHER EXPRESS OR IMPLIED, ORAL OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE OR NON-INFRINGEMENT AND (ii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, PRODUCT LIABILITY BASED UPON STRICT LIABILITY AND NEGLIGENCE. ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED.
LIMITATION OF LIABILITIES. SOUND INSPECTORS WILL NOT BE LIABLE TO CUSTOMER FOR INDIRECT, INCIDENTAL, SPECIAL, COVER, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, OR BUSINESS) RESULTING FROM OR IN ANY WAY RELATED TO THE GOODS OR SERVICES PURCHASED/SOLD HEREUNDER, THE AGREEMENT, OR TERMINATION OF THE AGREEMENT. This limitation applies regardless of whether the damages or other relief sought are based in contract or tort, including breach of contract, warranty, negligence, strict liability in tort, or any other legal or equitable theory. FURTHER, NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT TO THE CONTRARY, SOUND INSPECTORS’ TOTAL AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS OR SERVICES GIVING RISE TO THE CLAIM. THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF SOUND INSPECTORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE THEREOF, AND EVEN IN THE EVENT OF THE FAULT, NEGLIGENCE, OR STRICT LIABILITY OF THE PARTY WHOSE LIABILITY IS DISCLAIMED OR LIMITED.
WARNINGS: The improper installation or application of goods; their use with improper wiring, piping or ventilation; improper system design or engineering; inadequate inspection or testing; the lack of regular careful maintenance of both goods and any equipment in connection with which goods are used; the employment of insufficient or unqualified personnel; the lack of careful supervision, proper warnings, operating instructions, and safety precautions; the exposure of goods to excessive heat, moisture, dust, dirt, corrosion, or any other deleterious condition, each constitutes a hazard which can result in loss of life, serious personal injury, heavy property or business damage, and Customer shall itself take and require others to take all reasonable measures to avoid each such hazard. Customer agrees to notify its customers or users of good(s), as the case may be, of these warnings, and to deliver to its customers or users of good(s) all written warnings provided with each good by Sound Inspectors. Customer assumes all risk and liability resulting from goods delivered hereunder, whether used singly or in combination with other products. Unless otherwise agreed to by Sound Inspectors in writing, goods sold in connection with the services provided hereunder are not intended for use in connection with “safety-related” applications within any nuclear facility or any other hazardous activity such as aircraft, space exploration or other critical applications where failure of a single component could cause substantial harm to persons or property. Sound Inspectors disclaims any and all liability if standard commercial products are used in any such applications.
INDEMNITY: In the event that any person, firm or corporation asserts any claim against Sound Inspectors arising out of any act or omission of Customer, or arising due to Customer’s failure to notify of warnings or deliver warnings as set forth above, and provided that any such claim does not arise out of Sound Inspectors’ gross negligence or any actionable defect in Sound Inspectors’ product(s), then in either of such events Customer agrees to indemnify and save Sound Inspectors harmless from and against all liability, loss, cost and expense arising out of such claim.
In the event of any loss, injury or damage, Customer shall not itself, nor permit others to, dismantle, test, or examine any of the goods without giving Sound Inspectors sufficient advance notice to be present and Customer shall allow such presence.
SEVERABILITY: If any one or more of the provisions of the Agreement shall for any reason be invalid, illegal, or unenforceable, such circumstance shall not affect any other provision of the Agreement and the Agreement shall continue in full force and effect and be construed as if such provision, to the extent that it is invalid, illegal, or unenforceable, had never been contained herein or therein.
CONTROLLING LAW: The Agreement and all disputes thereunder, will be governed by the laws of the State of Minnesota, United States of America, without regard to Minnesota’s choice of law principles. The exclusive forum and venue for any legal action arising out of or related to the Agreement shall be the United States District Court for the District of Minnesota, and Customer submits to the personal jurisdiction of that court. If subject matter jurisdiction (including diversity jurisdiction) does not exist in the United States District Court for the District of Minnesota, then the exclusive forum and venue for any such action shall be the courts of the State of Minnesota located in Dakota County, and Customer submits to the personal jurisdiction of those courts.