Section 1 – Scope of Agreement
These Contract Dealer General Terms and Conditions (“GTC”) together with the Program Terms (defined below (if applicable), and together with these GTC, the “Agreement”) are the only terms which govern the sale of Products (as defined in Section 4 below) by Ergotron, Inc. (“Company”) to the other entity listed therein (“Dealer,” and together with Company, the “Parties”, and each individually, a “Party”) for sale by Dealer to end users through such channels and in the territory as authorized in the Program Agreement (“End Users” and “Territory”). “Program Terms” means the written agreement between Company and Dealer in which these GTC are incorporated by reference, including all attachments thereto and other terms referenced therein, and including as applicable any additional terms to which Company requires and obtains Dealer’s agreement as a condition of purchasing specific products or product lines. These GTC apply in addition to similar Program Terms, provided that to the extent of conflict between a term in these GTC and one in the Program Terms, the Program Terms control.
Section 2 – Non-exclusive Appointment
The Program Terms specify the extent to which Company appoints Dealer as a non-exclusive, independently owned and operated contract furniture dealer with responsibility for marketing and selling Products in the Territory. Dealer may not stock or hold inventory, sell to resellers, distributors or third-party sales agents or government agencies, or market, resell, distribute, or use Products other than as expressly permitted by the Program Terms. Dealer may not appoint its own dealer, sales agent, or other subcontractor to perform its obligations hereunder or otherwise assign or delegate its rights or obligations hereunder without Company’s prior written consent; any attempt by Dealer to do so without such consent is void. Dealer shall establish its pricing for Products sold by Dealer to End Users in its sole discretion.
Section 3 – Term and Termination
The term of the Agreement is set forth in the Program Terms, subject to termination as permitted therein, or by Company (i) immediately for cause, and (ii) by either Party for any reason or no reason upon at least 30 days’ prior notice, whether or not Dealer shall have recovered or recouped any investment or other expenditures made to sell Products. The Parties recognize that termination may result in loss or damage to either Party, but hereby expressly agree that neither shall be liable to the other for damages by reason of any termination, including for resulting loss or damage such as loss of prospective profits or occasioned by loss of goodwill, or any expenditures, investments, or commitments made in anticipation of the continuance of this Agreement. A termination shall not relieve a Party of any of its obligations arising prior to the effective date of termination.
Section 4 – Products
During the term, Dealer may identify itself as an authorized dealer of Products in connection with permitted activities but shall not (i) attach any additional trademarks, trade names or logos to Products or (ii) itself or through a third party customize, modify or direct Products or any Product label, instruction, or documentation. Any such customization or modification shall relieve Company from all warranties and obligations it would otherwise have with respect to such Product, and Dealer shall indemnify Company for any claims arising from such prohibited activities. “Products” means products identified in the Program Terms, subject to Company’s right without obligation or liability to Dealer to discontinue Products or models on notice to Dealer and to make changes in material, design or specifications.
Section 5 – Orders
Orders for Products hereunder must be submitted by Dealer by such method and with such detail as required by the Program Terms and are subject to acceptance by Company in its sole and absolute discretion. No order will be binding upon Company until it accepts the order by confirming it (by written confirmation, invoice or otherwise) or by delivering Products, whichever occurs first. Company shall have no liability to Dealer with respect to orders that are not accepted. Except as otherwise specified in the Program Terms, requests to change or cancel orders will be subject to Company’s approval and additional terms and fees. Company may cancel orders without liability based on product or material shortage, increases in costs, or other events beyond its control, or based on pricing, typographical, clerical or other errors, which are subject to correction and for which it will not be responsible.
Section 6 – Pricing, Invoicing and Payment
Unless otherwise agreed by the Parties on a case-by-case basis, pricing for Products supplied to Dealer hereunder will be Company’s then-current prices for Products as set forth in the applicable price list, which Company may change upon 30 days’ prior notice, less any discounts established in writing by Company from time to time, which it may also change at any time with or without notice. Dealer is responsible for any sales, use or other local, state, provincial or federal taxes. Company shall invoice Dealer for all Products supplied by Company hereunder. Dealer will be deemed to have accepted all invoices for which Company does not receive written notice of any dispute together with substantiating documentation within 10 days from receipt of invoice. Payment must be made in United States Dollars (or other currency approved in writing by Company) within the payment period established by the Program Terms; provided that deposits or payment in advance may be required if Company has a reasonable concern about Dealer’s ongoing ability to pay invoices as they become due. Dealer shall not make any deduction or offset of any kind from any payments due to Company without Company’s written approval. If Dealer becomes delinquent in payment obligations, Company may exercise any or all of the following remedies in addition to rights or remedies otherwise available to Company: (i) defer or suspend Product shipment; (ii) refuse to extend further credit to Dealer; (iii) charge a late fee of 1.5% per month (or the maximum permitted by Law) on undisputed overdue amounts and/or (iv) declare outstanding amounts due and payable notwithstanding any credit terms previously in effect.
Section 7 – Lead Times and Schedules
Lead times are subject to change and will be quoted based on the longest lead time applicable to an order. Shipping and delivery dates requested or provided are estimated and not guaranteed. Company shall not be liable in the case of late delivery. Dealer is responsible for all demurrage or detention charges. Company may make partial shipments and is not obligated to deliver Products for which Dealer has not provided shipping instructions. If shipment is postponed by Dealer for any reason whatsoever, or Products are not accepted upon delivery, Products will be deemed delivered and Company may move Products to storage at Dealer’s risk and expense. Without limitation of the foregoing, Company will not be liable for any delay or failure to perform any obligations hereunder during any period when performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control, or arising out of shortage or curtailment of material, labor, transportation, or utility services, or failure or delay by its suppliers. In any such case, the date of delivery will be extended by a period equal to the delay plus a reasonable time to resume production, and the price will be equitably adjusted to compensate Seller for such delay and related costs and expenses If Products are in short supply for any reason whatsoever, Company may allocate available supply to any distributors, dealers and/or customers in such manner it deems appropriate in its sole discretion.
Section 8 – Delivery
Delivery terms and freight charges shall be as specified in the Program Terms, subject to additional terms of the applicable invoice, which shall control in the event of conflict. Unless otherwise specified, Products shall be packed for shipment in accordance with Company’s then-current commercial practices and shipped CIP Company facility, with risk of loss and title transferring from Company upon delivery to the common carrier. Title and ownership to software provided with Products is retained by Company and is not transferred to Dealer or any End User, as such software is licensed, not purchased. If Company is responsible for filing freight claims, it will do so only if the damage is noted on the delivery receipt and if Dealer separately sends written notice of damage along with photo documentation within 1 business day of delivery. Dealer must contact Company within 10 days of delivery date to preserve any claim for concealed damage or any non-conforming shipment, for which it must retain original packaging and provide photo documentation. Company shall be permitted to inspect any such shipment. If Company agrees that it is non-conforming, Company shall, at its option repair, replace, rework, or supplement the non-conforming shipment so that it does conform to the applicable order; otherwise, no returns will be accepted except as authorized by Company in advance, subject to its inspection and acceptance (through issuance of an RMA#) and applicable restocking fees, and with Dealer responsible for return freight. Company may reject any improper return and return it back to Dealer at Dealer’s expense.
Section 9 – Additional Dealer Obligations
Dealer shall at its sole expense: (i) implement any reasonable, nondiscriminatory criteria and policies that Company develops from time to time; (ii) conduct business in a manner that reflects favorably at all times on Products and the good name, goodwill and reputation of Company; (iii) comply with all laws, rules, regulations, decrees and other requirements (as amended or modified from time to time, “Laws”) that apply to Dealer in regard to the Agreement and any sale and/or delivery of Products, including sale, transfer, handling, storage, use, disposal, export, re-export, and transshipment, those related to anti-bribery and anti-corruption legislation in the Territory and to Products subject to export controls under the Laws of the U.S. and other countries; (iv) ensure that it does not export, re-export or transfer (directly or indirectly) any Products except in compliance with applicable export controls; (v) maintain commercial general liability and other insurance sufficient to protect Company against claims arising out of or relating to Dealer’s conduct in the sales, or service of Products (but in no case less than USD$2 million per occurrence); and (vi) during the term and for three years thereafter, maintain documentation and records sufficient to demonstrate its compliance with requirements of this Agreement and Law, which Company or its agents may access on reasonable notice during normal business hours. Dealer shall ensure that: (a) Products are used only for purposes and in the manner for which they were designed and supplied; (b) all persons likely to use or come into contact with Products receive appropriate training and copies of applicable instructions and documentation supplied by Company; (c) all third parties who use or may be affected by or rely upon Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with; (d) warning notices displayed on Products are not removed or obscured and (e) any End User agrees not to remove or obscure such warning notices.
Section 10 – Marks and Company Materials
Subject to all terms herein, (i) Dealer may use Company’s name and names of Products solely for purposes of accurately identifying Products that it markets or sells hereunder through the termination of this Agreement, however occasioned, and (ii) Company grants Dealer a limited, non-exclusive, non-transferable, revocable license to use trademarks, service marks and trade names (“Marks”), product images, text, data and information pertaining to Products that are provided by Company or downloaded with permission from designated websites (“Company Materials”) solely as required for promoting and selling Products in the Territory, plus the limited right to reformat the same as required for use in promotion in permitted channels; provided that Dealer may not distort, modify or alter in any manner any such Marks in Company Material, and Company may review and approve all uses of Company Material and to require any modifications it deems necessary. Dealer acknowledges that use of Company Material shall inure to the benefit of Company or its licensor and this Agreement does not confer upon Dealer any goodwill or other interest in Company Material or any such Marks. Dealer shall not use or register any Marks or any name or mark that is confusingly similar to the same as a part of its business, partnership, assumed or corporate name, email or website name or URL address.
Section 11 – LIMITED WARRANTY AND DISCLAIMER
COMPANY MAKES NO WARRANTIES TO DEALER UNDER THIS AGREEMENT WITH RESPECT TO PRODUCTS, EXPRESS OR IMPLIED. Company extends limited express warranties found in the warranty policy and the documentation provided with Products solely to the original End User. Dealer shall not make any warranties, representations, covenants or indemnities, either orally or in writing, to anyone including any End User with respect to Products, or on behalf of, or in the name of, Company or its affiliates, including any regarding performance or functional capabilities or characteristics, and shall not publish any technical description of Products beyond the description published by Company. EXCEPT FOR THE EXPRESS WARRANTIES EXPRESSLY SET FORTH HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO OTHER EXPRESS WARRANTIES OR CONDITIONS, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES AND CONDITIONS ARE SPECIFICALLY EXCLUDED, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY WARRANTY OR CONDITION ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
Section 12 – Indemnification
To the fullest extent permitted by applicable Law, Dealer shall indemnify, defend (with competent and experienced counsel reasonably acceptable to Company) and hold harmless Company and its affiliates, and its and their respective directors, officers, suppliers, agents, and employees (“Company Indemnitees”) from and against any third party claims, demands, investigations, suits, or causes of action (each, a "Claim") relating to or arising out of: (i) a breach of the Agreement by Dealer; (ii) the relationship or transactions between Dealer and its End Users; (iii) any assertions by employees or former employees of Dealer that their employment contracts or rights to employment have been transferred to Company or any of its affiliates; (iv) assertions by employees or former employees of Dealer that their employment contracts or rights to employment have been transferred to Company or any of its affiliates; (v) a failure by Dealer or End Users to follow specifications, instructions, warnings, documentation, guidance, or recommendations furnished by Company; (vi) use of Mark or Company Materials in an unauthorized manner; (vii) misuse or mishandling of Products by Dealer; (viii) modification of Products by Dealer or anyone acting at its direction without Company’s prior written approval; (ix) use of Products in combination with equipment, software, or other items not supplied by Company; (x) use of added Products in an application or environment for which they were not designed; (xi) Dealer’s fraud, misrepresentation, negligence, willful misconduct or breach of or noncompliance with any provision herein, or any other wrongful or willful act or omission or representation by Dealer; (xii) Dealer’s failure to comply with Law in connection with or related to its obligations hereunder; (xiv) Dealer’s acts or omissions in the performance of Dealer’s obligations hereunder; (xiv) any statements, claims, representations or warranties made by Dealer or its representatives or employees relating to Products, beyond those in Company’s applicable written warranty; and/or (xv) any claim of infringement of third party intellectual property rights that is attributable to modifications or reconfiguration work made by Dealer or its reconfiguration customer. Dealer shall also indemnify and hold harmless Company Indemnitees from and against any and all damages, fines, penalties, costs, and other amounts (including attorneys’ and other professionals’ fees and expenses incurred by Dealer in connection with the defending against the subject Claim) in connection with the adjudication of Claims for which Dealer is required to defend Company as provided above, or any settlement of such Claims.
Section 13 – Limitations on Liability
IN NO EVENT SHALL COMPANY BE LIABLE TO DEALER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, LOST SALES, LOST BUSINESS OPPORTUNITY, LOSS OF USE, REVENUE, REPUTATION OR DATA, PREVIOUS EXPENDITURES OR INVESTMENTS, OR GOODWILL IN CONNECTION WITH ANY PRODUCTS SUPPLIED OR TO BE SUPPLIED HEREUNDER OR ANY OTHER MATTER COVERED HEREIN, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR OTHER THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY HEREUNDER, WHETHER IN LAW, EQUITY, CONTRACT, INFRINGEMENT, STRICT LIABILITY OR OTHERWISE, EXCEED THE PRICE PAID BY DEALER UNDER THE AGREEMENT FOR THE SIX MONTHS PRIOR TO THE CLAIM. Company has set its prices and entered into the Agreement in reliance upon the limitations of liability above and other terms specified herein, and the Parties agree that the limitations of liability set forth in this Section are an essential element of this Agreement representing a deliberate and bargained for allocation of risk between the Parties that was a material inducement to Company entering into this Agreement, and it would not have done so without such limitations; provided nothing herein will exclude or limit liability which cannot be excluded or limited under applicable Law.
Section 14 – Confidentiality
Any designs, prices, manufacturing drawings or other information submitted to Dealer remain the exclusive property of Company and Dealer shall not copy such information or disclose such information to a third party without Company’s prior written consent. The Parties further agree that the terms of the confidentiality agreement executed by them are hereby incorporated by reference.
Section 15 – Independent Contractors
The detailed operations of Dealer hereunder are subject to its sole control and management. Dealer shall be solely responsible for expenses incurred in the performance by Dealer of its obligations hereunder and otherwise. Nothing herein shall be construed to create a joint venture or partnership between the Parties or an employee/employer relationship. Each Party is an independent contractor hereunder. Neither Party shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party. The Parties’ relationship does not and is not intended to constitute or create a franchise.
Section 16 – Governing Law; Jurisdiction
The Agreement will be governed by and interpreted in accordance with the internal laws of the State of Minnesota, without regard to conflicts of laws. Each Party disclaims the applicability of the UN Convention on Contracts for the International Sale of Goods and hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Minnesota for purposes of adjudicating any matter arising hereunder or in connection herewith. The Parties agree to waive their right to a jury trial with respect to any claims arising from or related to this Agreement. No claim may be brought under this Agreement after two years from the date the claim arose or could be reasonably discovered.
Section 17 – Notices
Notices and other communications required or permitted to be given hereunder will be deemed sufficiently given and effective upon receipt if sent by registered or certified mail, postage prepaid and return receipt requested or overnight delivery service with verification of receipt, in each case to the address for the other Party stated in the Program Terms as updated from time to time in writing, with a copy sent to Company by email to [email protected].
Section 18 – Entire Agreement
The Agreement (any applicable confidentiality agreement) constitutes the complete statement of the agreement between the Parties with respect to its subject matter and supersedes all prior and simultaneous representations, discussions, negotiations, letters, proposals, agreements and understandings between the Parties with respect the same. Dealer may use its standard ordering and other forms in connection with its purchase of Products hereunder, but use of such documents is for convenience only, and no term or condition set forth in such documents will operate to modify, delete, or supersede any term or condition herein. Company’s rights and remedies hereunder are cumulative and are in addition to and not in substitution of any otherwise available to it.
Section 19 – Miscellaneous
If any provision herein is found or declared to be illegal, invalid or unenforceable under any applicable Law, it will be stricken or modified to the extent necessary to make it enforceable while preserving the Parties’ original intent, with all other provisions unaffected and remaining in full force and effect. As used herein, (i) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (ii) the word “or” is disjunctive but not necessarily exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Agreement as a whole. The Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Headings are for reference only and will not affect interpretation. The English language version of the Agreement will be controlling in all respects and any version in any other language will not be binding. Termination of the Agreement shall end Dealer's status as an authorized Company dealer but shall not affect any liability of either Party to the other accruing prior to the date of termination or arising hereunder, including payment obligations. Any terms herein which by their nature should apply beyond the termination of the Agreement will remain in force thereafter. If Company accepts an order from Dealer after termination, such transaction will be governed, unless the contrary intention appears, by the terms herein applicable to such transactions, but such acceptance shall not be construed as a renewal of this Agreement or waiver of the termination. The Agreement will not benefit or create any right or cause of action in or on behalf of any person or entity other than the Parties, Company affiliates, and their successors and permitted assigns.
Section 20 – Amendment
Company may update these GTC at any time by posting an updated version of these GTC to this page. Dealer shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to Dealer of the update of these GTC, provided that Dealer’s rights and obligations under these GTC with respect to any Products will be as provided in the version of these GTC available at the time of its purchase of such Products. Except as specified above with respect to the GTC, no amendment hereto will be valid unless made in writing and agreed to by Company. Company’s failure to enforce any right or provision of the Agreement will not constitute a waiver of future enforcement and will be effective only if in writing and signed by Company’s authorized representative.
These Terms of Sales were last revised October 1, 2021.