GMI Solutions Terms and Conditions of Sale

  1. APPLICATION OF TERMS. The following terms and conditions (“T&Cs”) shall govern the sale by Granite Microsystems, Inc. d/b/a GMI Solutions (“GMI”) to the entity (“Customer”) named on the invoice, order or acknowledgment that will be provided to Customer for the sale of products sold by GMI (the “Products”). Customer agrees to be bound by and accepts these terms and conditions and acknowledges that these terms and conditions supersede any terms and conditions of any purchase order or similar document placed by Customer and are a condition to GMI’s obligations hereunder. Any attempt to modify, supplement or amend these terms and conditions will be void unless agreed to in writing by GMI.
  2. PAYMENT TERMS; ORDERS; QUOTES. All orders are not binding on GMI unless accepted by GMI in writing or GMI’s shipment of the Product. Acceptance is determined at the sole discretion of GMI and orders can be rejected for any reason at any time. Any quotation provided by GMI will be valid for the time period stated in the quotation. If no time period is stated, such quotation will be valid for 14 days from the date of the quote. GMI reserves the right to equitably adjust the price and delivery terms of the order in the event of changes to the volumes of Products. Customer shall pay invoices within 30 days from the date of the invoices unless GMI has agreed to other terms, in writing, or unless GMI requires C.O.D. payment or credit card payment. By providing a credit card or other payment method accepted by GMI, Customer represents and warrants that Customer is authorized to use the designated payment method and that Customer authorizes GMI (or our third-party payment processor) to charge Customer’s payment method for the total amount of Customer’s order (including any applicable taxes and other charges). If the payment method Customer provides cannot be verified, is invalid or is otherwise not acceptable, Customer’s order may be suspended or cancelled. Customer must resolve any problem GMI encounters in order to proceed with Customer’s order. For purchases other than be credit card, Customer agrees to pay interest on all past due sums at the lesser of 1.5% per month or the highest rate allowed by law. IF CUSTOMER BREACHES ANY PROVISION IN THIS PARAGRAPH, GMI SHALL BE ENTITLED, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, TO RECOVER ALL CONSEQUENTIAL, INCIDENTAL AND COLLECTION COSTS, INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEY FEES AND STORAGE COSTS. Notwithstanding anything to the contrary herein, delivery dates on orders may not be delayed by Customer more than 30 days beyond the delivery date initially acknowledged and agreed to by GMI in writing, unless previously agreed upon in writing by GMI. If GMI grants Customer any credit that may be applied against future invoices, any unused credit shall expire 365 days after the date the credit is granted to Customer.
  3. SHIPPING; TAXES. All Products purchased by Customer will be shipped ExWorks from GMI’s facility in Mequon, Wisconsin. Prices do not include shipping and handling charges, sales, use, excise, gross receipts, export, value added tax, or other similar taxes, customs charges or duties and Customer is responsible for all such taxes and charges.
  4. TITLE AND RISK OF LOSS; DELIVERY. Title and risk of loss shall pass to Customer on an ExWorks basis from GMI’s facility in Mequon, Wisconsin (“Delivery”). GMI may deliver the Products ordered in installments. Any delivery or shipment date given by GMI is an estimate only and GMI is not liable for any loss, damage, cost or expense of any kind for any failure to deliver in accordance with the given delivery or shipment date.
  5. LIMITED WARRANTY. GMI warrants to Customer that subject to the terms hereof (the “Warranty”): for a period equal to one year from the date of Delivery to Customer, the Products will be free from material defects in materials and workmanship under normal use and service. This warranty is not transferable by Customer to any third-party and is as stated herein unless otherwise agreed to in writing.
  6. EXCLUSIONS. The Warranty does not apply to expendable or consumable parts or items, such as batteries or disk media supplied with the Product, or to any external hardware, software, data files, firmware, power cords, covers, or rubber parts. The Warranty does not apply to additional hardware or software that is used in conjunction with the Product. Other than as expressly stated in the Product specific documentation, GMI does not warrant that the Product is compatible with any other hardware, software, operating system (or upgrades) or any enhancements and the Warranty does not apply to any defects or nonconformance of the Products caused by (a) the incorporation of the Products in or with, or combination, operation or use of the Products in or with, any technology, including any software, hardware, firmware, system or network, or service or (b) the modification of the Products. GMI does not warrant the Product if it is used outside of the countries in which it is certified for use in product specific documentation.The Warranty does not apply to any negligent, reckless, or intentional alteration, misapplication, misuse or abuse by any person or entity other than GMI or its authorized service representatives involving or affecting the Product or any component thereof. The Warranty does not apply to any repairs or replacements to or of the Product or any part thereof arising out of or relating to any service of the Product or any part thereof performed or provided by any person or entity other than GMI or its authorized service representatives. GMI shall in no way be responsible for the costs or expenses or any repairs or replacements regarding the Product or any part thereof that are performed or provided by any person or entity other than GMI or its authorized service representatives.
  7. DISCLAIMER OF OTHER WARRANTIES. GMI MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCT EXCEPT FOR THE WARRANTY SET FORTH HEREIN. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND NON­INFRINGEMENT OF ANY RIGHT OF ANOTHER, INCLUDING ANY INTELLECTUAL PROPERTY RIGHT), UNLESS REQUIRED UNDER APPLICABLE LAW. IN WHICH CASE, SUCH IMPLIED WARRANTIES ARE LIMITED TO THE TERM OF THE WARRANTY SET FORTH HEREIN. Some states do not allow limitations on the term of an implied warranty, so the above limitation may not apply. No oral or written information or advice given by GMI, its dealers, distributors, agents or employees shall create a warranty or in any way increase the scope of the Warranty, and no such persons have authority to modify any aspect of the Warranty or create any other warranties.
  8. EXCLUSIVE REMEDIES. As Customer’s sole and exclusive remedy for any and all breach of Warranty claims, GMI will correct, at its place of business or any other site chosen by GMI, in its sole discretion, any material defects of the Products covered under the Warranty at no charge to Customer for labor and materials. All Products returned to GMI are subject to a standard diagnostic charge that will be waived if GMI repairs the Product under Warranty. GMI’s liability for failure to repair the Product to conform to the Warranty after a reasonable number of attempts is limited to replacement of the Product or, if replacement is impractical, a refund not to exceed the purchase price of the Product. The remedies set forth in this section 8 of the T&C’s are the Customer’s sole and exclusive remedies for any and all breaches of Warranty by GMI.All warranty claims require a Return Material Authorization (“RMA”) number. Customer may call a Customer Service Representative at 262­242-8800 (Monday through Friday, 8:00 a.m. to 5:00 p.m. central time) to receive an RMA number and specific return instructions. Customer may also fax any RMA request to GMI at 262-242-8825 or e-mail any RMA request to GMI at service@gmisolutions.com. Customer should have the following information ready when requesting an RMA number: serial number of item, description of problem, and contact information. All RMA numbers are valid for 30 days. The RMA number must be conspicuously marked on the shipping package delivered to GMI. Any defective Products or components thereof shall be delivered at Customer’s cost to GMI or any other site designated by GMI. GMI will pay ground freight charges for delivery of any Product repaired under the limited warranty provided herein, to any continental U.S. or Canadian locations of Customer.Customer shall notify GMI in writing within 30 days of the date the Customer became aware of or should have become aware of a Product’s breach of a Warranty. Any claim or action for a breach of Warranty must be commenced within one year after the Delivery of the Product at issue.
  9. LIMITATION OF DAMAGES. UNDER NO CIRCUMSTANCES SHALL GMI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RESULTING FROM THE SALE OR USE OF A PRODUCT, WHETHER BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, AND THE TOTAL LIABILITY OF GMI IN CONNECTION WITH SUCH PRODUCT SHALL NOT EXCEED THE PRICE PAID BY CUSTOMER TO GMI FOR THE PRODUCT ON WHICH SUCH LIABILITY IS BASED DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE ACCRUAL OF THE APPLICABLE CAUSE OF ACTION. Examples of indirect, special, incidental, or consequential damages include, but are not limited to, loss of profits, loss of revenue, loss of use of the Product or any hardware system associated equipment, cost of capital, cost of substitute or replacement equipment, facilities or services, down time, purchaser’s time, claims of third parties, including customers, and injury to person(s) or property. This limitation applies both during and after the Warranty period. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply.
  10. SOFTWARE LICENSE AND WARRANTY. Title to any software installed with the Products shall remain with the applicable licensor(s). All software is subject to the applicable license agreement(s). Customer shall be bound by the license agreement once the software is opened, the package is opened or its seal is broken. Warranty for any software shall be in accordance with the license agreement. GMI does not warrant any software under these T&Cs.
  11. PROPRIETARY RIGHTS. All intellectual property of the Products, including without limitation all designs, specifications and drawings for the Products or the manufacture thereof whether or not patentable, is and shall at all times remain the exclusive property of GMI.
  12. GMI PRODUCTS AVAILABILITY. Product availability may be limited. Products may not be available for immediate delivery. GMI reserves the right, without liability or prior notice, to revise or cease to make available any or all Products.
  13. FORCE MAJEURE. GMI SHALL NOT BE LIABLE IF IT IS UNABLE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS DUE TO, DIRECTLY OR INDIRECTLY, THE FAILURE OF GMI’S SUPPLIER TO DELIVER AS PROMISED; SABOTAGE; FAILURE OR DELAYS IN TRANSPORTATION, UTILITY SERVICE OR COMMUNICATION SYSTEMS; ANY LABOR OR INDUSTRIAL DISPUTE; SHORTAGES OF LABOR, FUEL, SUPPLIES OR EQUIPMENT; WAR; FLOOD; EXPLOSION; ACT OF GOD OR TERRORISM; OR ANY OTHER EVENT BEYOND THE CONTROL OF GMI.
  14. GOVERNING LAW AND JURISDICTION. The sale of Products shall be governed by the laws of the State of Wisconsin excluding the conflict or choice of law provisions. The state and federal courts located in the State of Wisconsin shall have exclusive personal jurisdiction over GMI and Customer for all disputes arising hereunder. Venue and jurisdiction for all disputes will lie in the state courts of Milwaukee or Ozaukee County in Wisconsin or in the federal courts located in Milwaukee County.
  15. EXPORT CONTROL. Products purchased or received under these terms and conditions shall be subject to export laws and regulations of the United States of America, and Customer agrees to comply with such export laws and regulations.
  16. SECURITY INTEREST. GMI reserves security interest in all Products and any proceeds thereof until any and all payments and charges are paid in full. Customer shall, reasonably assist GMI in perfecting such security interest.
  17. NO ASSIGNMENT. Customer may not assign its rights or obligations under these T&Cs without the express written consent of GMI.
  18. WAIVER AND SEVERABILITY. Waiver by GMI of anyof the terms or conditions of the T&Cs shall be effective only if in writing and signed by GMI, and shall not constitute a waiver of such terms as to any subsequent events or conditions, whether similar or dissimilar. The invalidity or enforceability of any particular provisions of these T&Cs shall not affect the other provisions within these T&Cs, and the remaining provisions of these T&Cs shall be construed in all respects as if such invalid or unenforceable provisions were omitted. In the event that any part of these T&Cs is held by any court or other judicial or administrative body to be null, void or unenforceable, said provision shall survive to the extent it is not so declared, and all of the other provisions of these T&Cs shall remain in full force and effect

Revised 6/19/17